1NC

OFF
 OFF
COURTS CP
The United States Judiciary should rule:
 suspension of habeas corpus for military detainees violates the Fifth
Amendment, and
 suspending habeas in such a context is not authorized by any statute.
The United States Executive Branch should comply—and veto any bill that does not
comply—with such a ruling.

Counterplan solves---Congress is constitutionally prohibited from responding based on

Article I.
Waxman et al. 7-- Seth Waxman, Counsel on Record, Solicitor General of the United States from
1997 through January 2001. Joined by dozens of lawyers, many of which were law professors. [Supreme
Court of the United States Lakhdar Boumediene, et al., Petitioners, v. George W. Bush, et al.,
Respondents, On Writ of Certiorari to the United States Court of Appeals for the District of Columbia
Circuit, Brief for The Boumediene Petitioners, No. 06-1195,
https://www.law.umich.edu/currentstudents/writingbettersentences/Documents/Faculty Briefs--Julian
Mortenson.pdf]

Moreover, the
government has failed to show any lawful basis for Petitioners’ imprisonment. The government
relies on the CSRT determinations that Petitioners were enemy combatants, but those
determinations turned on a definition
of “enemy combatant” that is not authorized by the AUMF, the government’s proffered statutory basis
for detention. The government argues that the authorization of force against “organizations” connected to the September 11
attacks permits the indefinite military detention of any person who gave “support[]” to al Qaeda or “associated forces,” even if the alleged
“support[]” was unrelated to combat or, for that matter, unintentional. This argument finds no basis in the AUMF or in
“longstanding law-of-war principles.” Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality opinion).

Petitioners’ detention also violates the fundamental Fifth Amendment right against imprisonment
without due process of law—a right Petitioners may invoke due to their imprisonment in a territory subject to the exclusive
jurisdiction and control of the United States. Although the government has subjected Petitioners to a very serious deprivation of liberty—
indefinite and potentially lifelong military detention—it has failed to offer basic procedures required by due process, including meaningful
notice of the bases for detention and an opportunity to be heard before an independent decisionmaker. Whatever procedures or standards
might have been acceptable had they been implemented timely and carried out neutrally, and whatever procedures might be acceptable with
respect to future arrivals at Guantanamo, due process cannot brook further experimentation and delay with respect to
these Petitioners after nearly six years of detention. Petitioners are therefore entitled to habeas relief.

ARGUMENT

The Founders of our nation created a Constitution dedicated to the protection of liberty, not one that
turns a blind eye to indefinite detention without a meaningful opportunity to be heard. The Suspension Clause of
Article I stands as the surest guarantee of liberty and due process by preventing Congress from
abolishing habeas corpus or replacing it with a procedure that does not afford a petitioner a meaningful way to challenge his
imprisonment. By allowing the indefinite military detention of Petitioners to stand without adequate judicial examination, the court of
appeals disregarded the Founders’ deliberate protection of the greatest legal instrument they knew.
Once that error is corrected, it is clear that Petitioners’ detention is both unauthorized and unconstitutional.
 OFF
T CJR
Interp---criminal justice reform exclusively deals with policies surrounding the
treatment of criminal law offenses
Wex 20 – the Wex Definitions Team, a group of Cornell Law Students organized and supervised by LII
Co-Director Craig Newton to provide enhanced definitions of important legal terms to aid the general
public in understanding those terms, June 2020, “Criminal Justice,”
https://www.law.cornell.edu/wex/criminal_justice

Criminal justice is a generic term that refers to the laws, procedures, institutions, and policies at play
before, during, and after the commission of a crime. As a modern concept, criminal justice expresses
two central ideas. The first is that criminals and victims of crime have certain rights, while the second is
that criminal conduct should be prosecuted and punished by the state following set laws. By contrast,
throughout ancient history, criminal acts were resolved privately, often by blood feuds for murder and
trial by ordeal for other crimes. The biblical phrase "an eye for an eye" embodied the criminal justice
principles of ancient times. In ancient Athens, for example, citizens were left to investigate and
prosecute crimes with no government assistance. In this context, criminal justice referred to all available
means private citizens had to avenge the harm caused by a crime.

Violation---the plan reforms military detention which is non-criminal

Meghan Claire Hammond 16, J.D., Northwestern University School of Law, 2016, “WITHOUT
UNNECESSARY DELAY: USING ARMY REGULATION 190–8 TO CURTAIL EXTENDED DETENTION AT SEA,”
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1257&context=nulr

127 See Vladeck, supra note 118, at 717 (“First—and perhaps most importantly—Rule 5 only applies to
criminal arrests, and not arrests for purposes of non-criminal detention. And although no court has ever
considered whether military detention constitutes non-criminal detention for purposes of Rule 5, that
conclusion should follow from the fact that military detention is putatively civil, not criminal. Thus, the
clock Rule 5 contemplates does not begin to run until the inception of criminal proceedings—and so
would not run until after a terrorism suspect who is initially subjected to military detention had been
transferred out of military custody and into civilian custody for purposes of prosecution.”).

Vote neg:
1) Limits---their interp opens up entire separate legal categories of non-criminal
penalties---civil, immigration and military law all could be their own topics
2) Topic education---our interp forces debate over salient CJR controversies---their
topic replicates stale war powers debates
 OFF
STIMULUS DA
Some fiscal stimulus passes now and rescues the economy -- Pelosi concedes to
Senate Republicans’ unity.
Dolcourt & Colby 20 -- Jessica Dolcourt and Clifford Colby, CNET, citing Senate Majority Leader Mitch
McConnell, and Jerome Powell, Chairman of the Federal Reserve. [Stimulus deal before 2020?
Washington may have traded one hurdle for another, 11-6-20, https://www.cnet.com/personal-
finance/stimulus-deal-before-2020-washington-may-have-traded-one-hurdle-for-another/]

Against the backdrop of tense voting counts and a blistering 121,000 new COVID-19 cases in a single day, the status of negotiations for a new
stimulus bill bringing aid to American families and businesses is about to once again take center stage.

One giant hurdle to making a bipartisan deal apparently evaporated on Wednesday when Senate Majority Leader
Mitch McConnell said Congress should pass another COVID-19 relief package before January, reversing an
earlier statement made before the election that "something we'll need to do right at the beginning of the year."

"This [virus] is not going to go away until we kill it. So that's Job 1," McConnell said during a news conference. "I think we need to do it and I
think we need to do it before the end of the year. I think now that the election's over the need is there and we need to sit down and work this
out." The Senate returns from recess Nov. 9.

But by Friday, a new roadblock has taken form: agreeing on what the next stimulus ill should contain. House Speaker Nancy Pelosi rejected the
idea of a narrow stimulus package. "That isn't anything that we should even be looking at," she said during the Nov. 6 press conference.

Democrats and Republicans could once again clash on their fundamental differences in the size and scope of more stimulus aid. (Democratic
candidate and former Vice President Joe Biden has a stimulus plan of his own.)

The fates of a second stimulus check, extra weekly unemployment benefits for millions of Americans and aid for coronavirus testing are
unknown as well. Although McConnell has favored another direct payment in the past, his recent efforts have been to try to pass narrow pieces
of legislation that come in at a fraction of the cost of sweeping omnibus proposals and do not include more stimulus checks.

Economists have forecasted that surging cases of COVID-19 combined with a lapse in the few remaining
stimulus benefits left will hobble the economy and put "millions of Americans" at risk of having power and water shut off and
not being able to afford groceries. (Read more about the K-shaped recovery.)

"We'll have a stronger recovery if we can just get at least some more fiscal support," Chairman of the Federal
Reserve, Jerome Powell, said Thursday (PDF). "When it's appropriate and at the size Congress thinks is
appropriate," he added.
With Republicans gaining seats in the House of Representatives and the Senate potentially split 50/50 between the two parties, the
Democratic-led chamber and its current leader, some
analysts have suggested that Pelosi may have trouble pushing
through their objectives, regardless of who the president is. Without full control of Congress, Pelosi may
lose leverage, some predict.

There's additional pressure, too. A new bill of some sort will need to be passed to avoid a US government
shutdown on Dec. 11. It's possible that stimulus funding of some sort will makes it into that bill.

CJR causes Senate GOP in-fighting.

Zhou 18 -- Li Zhou reporter @ Vox, 12-12-2018. ("Republicans’ civil war over criminal justice reform,
explained," https://www.vox.com/2018/12/12/18131130/mitch-mcconnell-criminal-justice-
reform)//MGreen
Louisiana Republican John Kennedy just added yet another twist to Senate Republicans’ heated internal fight over
criminal justice reform.
Kennedy — a longstanding opponent of sentencing changes in criminal justice legislation — said he intends to block a vote on the bill this
Thursday, because he’d like some more time to review it, according to BuzzFeed’s Paul McLeod.

Kennedy’s move marks the latest development in a

contentious back-and-forth that has roiled Senate Republicans —
who are deeply divided on the matter, despite President Donald Trump’s endorsement of the legislation.
On the one hand, there’s Sens. Chuck Grassley, Lindsey Graham, Tim Scott and Rand Paul, who are among a vocal GOP contingent pressing the
Senate to support the First Step Act, a bipartisan criminal justice reform bill aimed at easing prison sentences for those incarcerated in the
federal system. On the other, there’s
a group of Senate Republicans, including most prominently Sen. Tom
Cotton, who have vowed to oppose the legislation and argue that it could give violent criminals a pass.

The result is a split among Republicans during a time when, increasingly, everything is partisan: There is
a small but dedicated group of Republicans for whom criminal justice reform feels personal. There is
another subset of Republicans who worry it makes the party of “law and order” seem weak on crime.
And there’s a president who, as a criminal probe into his campaign’s activities during the election circles closer, no one is quite sure where he
stands despite his official support.

Because of these intra-party dynamics, Senate Majority Leader Mitch McConnell had been reluctant to bring the
bill to the floor, though he announced that he would do so earlier this week.

Diversionary war.
Howell 13. Patrick Howell – University of Georgia. “Economic Crises and the Initiation of Militarized Disputes,”
https://getd.libs.uga.edu/pdfs/howell_patrick_d_201305_ma.pdf

The findings are clear: economic

crises are an important trigger for shifts in a state’s rate of dispute initiation. By
using a large sample of states over a period of 185 years, this conclusion then can also be taken as generalizable to
the entire population of states in the international system. In addition to providing support for issue crossover and the influence economic
troubles can play on foreign policy decisions, the findings here also support the methodological rationale for using economic crises as explicit, observable events,
instead of as trends in other variables (e.g. GDP growth). Of course, this is not to say that all work on this topic is final. There exist a number of areas where this
research agenda can be improved upon and/or extended to in order to provide a more holistic account of where and how economic crises exactly apply political
pressure on leaders. First, the study of diversionary war exists in both quantitative tests and in more fine toothed
examinations of actual cases (Levy and Vakili 1992; Fravel 2010). Exploring the internal processes within states in such a fashion can also produce a
deeper understanding of the exact causal mechanisms through which prospect theory operates. Aggregation and levels of analysis become a basic concern with
applying prospect theory outside of the laboratory and to states and governments. After all, “prospect theory is developed as a theory of individual decision making,
the question is whether it is applicable to collective decision making” (Vis 2011, 337). Here a unitary actor assumption is made from the outset, but it is also possible
that the observed effect is driven instead by individual decision-makers themselves (for example, Fuhrmann and Early 2008, who keep the level of analysis only on
President Bush). A deeper case study of a few select cases with an eye towards process might reveal whether the increase in conflict initiation is due to a single
policy entrepreneur or leader, or if it is the result of collective behavior (as perhaps even aides, legislators, and bureaucrats seek to compensate for the detrimental
effects that accompany an economic crisis separately or in concert). Examination of specific cases might also provide a more accurate picture for policymakers of
the strategy that can accompany an economic crisis and inducement of diversionary tendencies in another state. Smith (Smith 1998) hypothesizes diversionary
actions as a strategic game, and finds that potential target states should then adopt a policy of strategic avoidance – disengaging from any scenario that might make
them a target from a diversionary conflict initiated by an opposing state in dire straits. This question of strategic avoidance occurs most often in the study of the

United States (Fordham 2005; Meernik 2005), with evidence that other states avoid and/or initiate fewer disputes with the United States when the American
economy is performing poorly. The empirical test here using a proportionbased dependent variable might already be capturing some degree of a strategic
avoidance effect, in that some of the variation in the proportion of initiation could be because the rate of other states initiating disputes on the crisis-stricken state
is decreasing. If strategic avoidance is occurring, it actually increases
the strength of aspects of the diversionary war
literature (in that other states are actually behaving according to expectations of diversionary actions), but much
more work and nuance would be needed to separate where then the logic in strategic avoiders is originating. The final implication of the findings to be discussed
here is the role of institutions in this analysis. As stated above, the institutional
controls that were included in the estimation demonstrated
null effects on the overall rate of militarized dispute initiation. This finding is interesting considering the enshrined role that institutions and regime
types tend to play within scholarly work on diversionary war. Similar to the mixed results of GDP indicators, mixed and contradictory results can be found
throughout the body of work on diversionary war: some find that the diversionary effects exist mainly in democratic settings (Gelpi 1997; Davies 2002; Brul´e and
Williams 2009), while others find that diversionary effects occur in autocratic settings (Miller 1999; Lai and Slater 2005; Pickering and Kisangani 2010). One method
of reconciling the conflicting conclusions of whether democratic or autocratic leaders are more likely to engage in diversionary behavior is in direct tests comparing
the two regime types. Typically, these comparisons have either found the two regime types differ in the targets that are selected by each (Bueno De Mesquita and
Siverson 1995), or have found some fault with the way that the regime types themselves are defined, due to differing incentives for differing subtypes of regimes
(Pickering and Kisangani 2005). In order to examine the difference between democracies and autocracies, I split the sample from Model 2 into either of the regime
types, using a score of 6 in the Polity2 measure as a cut-point. Splitting the sample has the effect of interacting regime type with all independent variables, giving
regime specific effects not only for economic crises, but also all control variables.1 The results of this regime split can be found in Table 2. As can be seen here, the
effect of economic crises is positive and significant in both institutional settings. Comparing the coefficients for economic crisis in Table 2 with those of the
original Model 2, the likely explanation for why the institutional variables in the original model did not have an impact on crisis initiation is because all

democracies and autocracies possess relatively similar incentives for increasing crisis initiation following
economic crises, so any variation across institutions was only averaged out. However, the results presented in Table 2 also provide support for a difference
existing in the process of how diversionary conflict might occur in either regime type, due to the differences in control variable significance. This lends some
credence to the separation of democracies and autocracies for study of diversionary war, but provides no evidence that the effect should only exist in one or the
other. The similarity in the main independent variable of economic crises, though, furthers the assertion that the effect of economic crises increasing dispute
initiation can be viewed as a general behavior of all states in the international system. Conclusions Altogether, there can be said to be a
robust, positive
relationship between the occurrence of economic crises and the rate of dispute initiation by states. This effect is especially
strong and demonstrable when time ordering is preserved by examining how crises in the previous year affect states
in their current year. These findings can also be said to have a relatively high degree of substantive import as well. As Figure 1 showed, the occurrence of
each subsequent economic crisis increases the chances of a state initiating disputes by almost 3%. The nearly 20 percentage point increase in

dispute initiation across the range of the lagged economic crisis variable also represents a substantial impact, especially
considering the rare event nature of militarized disputes to begin with. This generalizable finding can have far-reaching impact to both
the study of diversionary war in academia, as well as directly for policymakers. In academe settings, there is good evidence to support the use of acute economic
crises over those variables based on the slowershifting trends of GDP or public opinion measurements. Economic crises
act as an explicit trigger
that can mark a leader’s shift into a losses frame and engage in riskier behavior consistent with both prospect theory
and diversionary war hypotheses. Meanwhile, applying this observed effect to the real world would seem to indicate that if a state goes through an economic crisis,
other states should have increased wariness in their dealings with the crisis-stricken state and/or be more prepared for the possibility of a new dispute emerging in
the wake of such an event.
 OFF
NGA CP
The National Governors’ Association should inform the White House that state
cooperation with all federal initiatives, including relevant criminal justice policies, will
be contingent upon the United States clarifying the application of section 1021 of the
National Defense Authorization Act of 2012 and the Authorization for Use of Military
Force of 2001 cannot be justified to prosecute and sentence individuals arrested for
terrorism in the United States.

State refusal to cooperate with criminal justice force the fed to acquiesce
Trevor Gardner 20, Washington law professor, 5-19-2020, “RIGHT AT HOME: MODELING SUB-
FEDERAL RESISTANCE AS CRIMINAL JUSTICE REFORM,” https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3238245

Nullification occurs as a consequence of the manpower disparity between the federal government and
local governments The federal government cannot broadly enforce most of its criminal initiatives absent
.

cooperation from state and local police . While the federal government employs 105,000 law enforcement agents across its various public security agencies, 7 4 state and local governments collectively employ 1.2 million.

The reach of a federal criminal initiative within a sub-federal jurisdiction often depends on the extent
75

to which the associated subfederal government allows its police officers to participate in the initiative's
enforcement If sub-federal governments broadly decline to assist in the enforcement of federal
.

immigration law, enforcement abstinence may translate to enforcement nullification . For example, of the estimated 11 million
unauthorized immigrants residing in the United States, 2.67 million (24 percent) live in California, and of California's unauthorized immigrant population, about 814,000 (30 percent) live in Los Angeles County.76 In 2013, the state of California passed the Trust Act, which barred state and
local police from honoring federal immigration detainers for criminal suspects unless the requested detainee had been convicted of (rather than merely arrested for) a "serious or violent felony."77 The Act does permit California police to lawfully grant federal detainer requests in a
limited number of circumstances, but cooperation is not required.78 Far from it. If occurring outside of the narrow range of discretion allowed under the Act, police cooperation with federal government officials constitutes a misdemeanor criminal offense. 79 Why is the California Trust
Act a major problem for the Department of Homeland Security? In short, DHS cannot effectively enforce federal immigration law in Los Angeles County without the support municipal police. The immigration enforcement policy clash in Los Angeles County indicates the federal
government's implementation challenges across the country. DHS Secretary Jeh Johnson addressed the issue in a memorandum in 2014, announcing the termination of "Secure Communities"-one of a succession of cooperative immigration enforcement programs.8 0 The letter addresses
the impact of sub-federal government opposition on the viability of the program: The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. But the reality is the program has
attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have
increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation.8 1 Johnson's letter captures the difficulties federal public-security officials face in enforcement-abstinence jurisdictions. Today, however, DHS officials
lobby the nation's largest cities in an attempt to persuade them to drop rigid abstinence policies and refer unauthorized immigrants suspected of terrorism or convicted of gang-related crime or of aggravated felonies under the Immigration and Nationality Act. 82 Several jurisdictions,

In a hearing before the House

such as New York City, Philadelphia, Los Angeles, and Cook County, have resisted compliance with these requests,favoring near-absolute abstinence from the enforcement of federal immigration law.83

Judiciary Committee in July of 2015, Secretary Johnson was asked to explain why his agency opted to
terminate the Secure Communities program. Johnson testified that in the past year alone, state and
local police had ignored 12,000 federal immigrant-detention requests. 8 4 In response, the Department
decided to scrap Secure Communities and market its replacement, the Priority Enforcement Program
(PEP), as a tempered alternative The federal government's
. Under PEP, DHS officials would limit immigrant detainer requests to arrests for serious criminal offenses.85

modest objectives under PEP indicate the degree to which federal officials need subfederal police. When
state and local governments refuse to consent to cooperative enforcement, enforcement nullification
is, in many instances, a likely outcome. C. Stage 3: Mimicry When a state or local government successfully nullifies federal enforcement within its jurisdictional boundaries, it produces an enforcement vacuum and, as
a result, an alternative theory of public security. The appeal of this theory to other sub-federal governments will depend on security outcomes. Has public safety within the jurisdiction declined as the result of nullification? Or has nullification insulated constituents from harmful direct and
collateral consequences of enforcement? Does enforcement abstinence come with meaningful cost savings? If public officials observe the alternative model exhibited by an abstaining jurisdiction and answer one or more of these questions in the affirmative, they may be inclined to mimic
the abstaining jurisdiction and join an emerging group of sub-federal government dissenters by passing a rule restricting cooperative enforcement. Mimicry therefore occurs when public officials in peer jurisdictions credit an abstaining sub-federal government's alternative theory of public
security and then replicate its alternative public security model. Sub-federal government opposition to the prospect of cooperative Patriot Act enforcement illustrates the mimicry element of the process model. Congress passed the Patriot Act on October 26, 2001, with the expressed
intent of improving the nation's ability to protect itself from terrorism. 86 The Patriot Act's primary provisions pertain to intelligence gathering and sharing, with several establishing new intelligence-sharing channels between national security officials and police. 87 Section 908 of the Act,
for instance, calls for federal, state, and local government officials to be trained to gather intelligence in the course of normal duties,8 8 and it instructs the U.S. Attorney General, in coordination with the Central Intelligence Agency (CIA), to train police to identify, circulate, and use foreign
intelligence information.8 9 In response to aggressive ACLU lobbying against the plan at the state and local levels, several state and municipal legislatures enacted policy restricting participation in Patriot Act enforcement.90 ACLU leaders described their alternative vision for security as a
"dual security" model, in which sub-federal governments use the degree of autonomy they hold under the Constitution to expose federal excess in public security administration, subsequently "flip" other sub-federal governments (by way of mimicry), and incrementally expand the reach
of the nullification project.91 Anti-Patriot Act legislation-enacted across a cluster of New England towns and cities in the mid-2000s-indicates the dynamic driving mimicry. In the preamble of enforcement-abstinence legislation, municipalities in several states that were home to the
original American colonies reflected upon the Revolutionary War and the jurisdiction's purported long-standing commitment to the defeat of "tyranny." 92 In Brewster, Massachusetts, the city council passed a resolution recalling its residents' uprising against King George, stating:
Whereas Patriots of the town of Brewster, then the North Parish of the town of Harwich, in 1774 joined with other Cape Townsmen to block the opening of the September session of the King's Courts, Common Pleas and General Sessions, in Barnstable in the first overt resistance on Cape
Cod to the Tyranny of King George III, and [w]hereas once again Cape towns are joining in resistance to Acts that can lead to Tyranny, we join here with the towns of Orleans, Eastham, Wellfleet and Provincetown to adopt a resolution to protect the civil liberties of our residents . . .93 The
resolution claimed that the Patriot Act, the Terrorist Information Awareness Program (T.I.P.S.), and various executive orders regarding security administration "threatened" Brewster residents.9 4 It accused the U.S. Attorney General of making "threatening statements" about legal
opposition to the Patriot Act and other security policies.95 In light of its claimed findings, the city of Brewster banned par ticipation in or cooperation with "any inquiry, investigation, surveillance, or detention," unless Brewster police first established probable cause of past or ongoing
criminal activity.96 Neighboring jurisdictions matched Brewster's lofty rhetoric. The city of Lexington, Massachusetts, passed a resolution barring city police from collecting national security intelligence-either independently or in collaboration with the federal government-absent
reasonable suspicion of a criminal act.97 The council also directed its library officials to ensure the "regular destruction of records that identify the name of the book borrower after the book is returned, or that identify the name of the Internet user after completion of Internet use."98 In
justifying these provisions, Lexington legislators referenced the effort of their forefathers to secure civil liberties during the Revolutionary War and identified Lexington as "the Birthplace of American Liberty."99 Similarly, the city council of Orleans, Massachusetts, referenced Orleans'
"long and distinguished history of defending the liberties of the Colonies and the Constitution of the United StatesH in 1772 and 1773 . . . [by] protesting British violations of their rights and liberties," and "vowing to 'defend [independence] with [their] lives.' "100 Orleans officials claimed
that constitutional protections of the town's residents had steadily eroded after the passage of the Patriot Act, and would be further diminished with the passage of the Patriot Act II and T.I.P.S.1ox How, then, are we to understand mimicry as a socio-legal process? How can we be sure
that the sub-federal governments promoting and passing legislation intended to hamstring Patriot Act enforcement actually shaped the perspective of external public actors and political constituencies? The normative impact of a single state or local government's decision to abstain from
a federal enforcement initiative can be difficult to discern; however, social theorists offer a basic framework for analyzing the relationship between culture and institutions that can be used to extend the proposed process model. In theorizing the role of culture in social movements,
cultural sociologists find that social institutions lead the processes of "cultural recoding" that facilitate structural change. 1 02 For a social movement to take flight, advocates must succeed in "winning the battle for symbolic encoding"1 03 by propagating new cultural frames through
influential institutions. In the field of criminal administration, sub-federal governments have taken on this work of recoding and refraining in waging an ideological battle with the federal government over the precise meaning of public security. Both sides seek to establish who or what
poses a risk to the public, as well as what configuration of laws, enforcement mechanisms, and enforcement priorities is needed to keep communities safe. Immigrant sanctuary jurisdictions often proclaim to have established strong public security through the trust police receive from the
local immigrant community-a trust largely based on the community's understanding that its police will not participate in ICE raids and federal immigrant-removal proceedings. 104 Organizations like the ACLU do similar work in shaping the public's understanding of the meaning of and the
means to public safety when promoting concepts like "dual security." The concept of "dual security" is meant to rival the concept of "national security" as an organizing principle in public security administration. To this end, the ACLU aggressively promotes the idea that sub-federal
governments can and sometimes should pursue a public security agenda that conflicts with their federal counterpart.1 As a general matter, the bigger the gap between the federal security initiative in practice and the federal theory of public security driving the initiative, the more likely it
is that other sub-federal governments will take note of the conflict between the federal government and the obstinate sub-federal government and consider the relative efficacy of the contrasting models of security. Effective public security models predicated on enforcement abstinence

There is a threshold at which the number of

will inspire other governments to follow suit. As the dominoes fall, momentum builds toward a subfederal decriminalization movement. D. Stage 4: Abolition

sub-federal jurisdictions that credit an alternative theory of public security and implement an alternative
model of security governance will be large enough to nullify on a national scale, a controversial form of ,

federal criminal enforcement. the federal government may indefinitely suspend enforcement-
In response to this setback,

what might be considered de facto abolition-or it may repeal the legislative provision upon which the
enforcement initiative is based. Repeal may be the result of frustration with enforcement dysfunction,
concerns about the legitimacy of the rule of law, or federal officials having ultimately credited the
alternative theory of public security circulating among the dissenting sub-federal governments. How likely is it that

The federal
abolition will occur, given the federal government's interest in projecting its dominance in matters of public security? Is it realistic to think that federal officials will repeal a public security initiative in response to sub-federal resistance?

response to state and local marijuana decriminalization suggests that crime policy abolition is a
plausible, result if not likely, of widespread enforcement abstinence. Federal drug enforcement agents are now tasked with dismantling a marijuana sales market that includes 14.4 million marijuana users, 4 million of whom live in decriminalization states.1 0 6
The latter number is important as state and local police conduct most of the front-end work in drug enforcement-specifically, investigations and arrests. Federal law enforcement agents made 6,928 arrests for marijuana offenses in 2012107-less than one percent of the approximately
749,825 marijuana arrests that year.1 0 8 Most of the federal government's impact on marijuana trafficking comes at the back-end of the criminal process, where federal prosecutors select a subset of state and local marijuana arrests for federal prosecution.10 9 This observation helps to
explain estimates placing the probability of arrest for violation of the federal marijuana prohibition within a legalization state at one in 2,000-a rate that is likely far too low to deter marijuana production and distribution in compliance with state law.110 The Department of Justice
admitted as much in a 2013 memorandum to its line attorneys titled, "Guidance Regarding Marijuana Enforcement."111 The memo's author, Deputy Attorney General James M. Cole, noted the federal government's limited investigative and prosecutorial resources in enforcing the
Controlled Substances Act, and that federal officials had long relied upon state and local police for the street-level investigative work of the federal drug-enforcement system. 1 12 Outside of .. . [select] priorities, the federal government has traditionally relied on states and local law
enforcement agencies to address marijuana activity through enforcement of their own narcotics laws....The enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes affects this
traditional joint federal-state approach to narcotics enforcement. The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana- -related conduct will implement strong and effective regulatory
and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. 113 The memo advises federal prosecutors to limit marijuana enforcement within legalization states to exceptional circumstances such

Outright repeal of a federal criminal initiative

as trafficking to children and trafficking by criminal syndicates, all but eliminating the enforcement of the federal prohibition within decriminalization states. 114

is less likely than suspension, though it certainly falls within the realm of realistic possibilities . As referenced above, DHS
terminated a series of cooperative immigration enforcement initiatives (e.g., the Criminal Alien Program and Secure Communities) in response to the immigrant sanctuary movement, though federal authorities coupled the termination with the introduction of a more modest alternative.

The clearest case of sub-federal resistance bringing about the repeal of a federal crime-control initiative
is likely the historical case of Prohibition . The ratification of the Eighteenth Amendment in 1919 ushered in the Prohibition era, and federal officials soon recognized the need for state and local police support if
Prohibition was to have a reasonable chance at success.' The Commissioner of the Bureau of In ternal Revenue (the agency charged with directing Prohibition enforcement) advised that effective enforcement required "the closest cooperation between the Federal officers and all other
law-enforcing officers-State, county, and municipal."116 Many of the most populous and well-trafficked American cities and states withheld this support to the frustration of President Warren G. Harding.H7 Harding argued, in turn, that the federal government lacked the
"instrumentalities" to effectively enforce Prohibition, and that the states were "disposed to abdicate their own police authority in this matter[.]" 118 Six years after Harding's critique of sub-federal government engagement, the federal Commissioner of Prohibition echoed the sentiment,
referencing the Eighteenth Amendment's call for concurrent enforcement at the federal and state levels and the fact that only eighteen of the forty-eight states had allotted money for this purpose." 9 In 1926, the states collectively spent $698,855 on Prohibition enforcement-an eighth of
the funding spent on enforcing fishing and gaming laws. 1 2 0 A subsequent report based on a comprehensive federal review of the failures of Prohibition concluded that federal efforts at Prohibition enforcement would fail without direct and sustained engagement by local police
departments: It is true that the chief centers of non-enforcement or ineffective enforcement are the cities. But since 1920 the United States had been preponderantly urban. A failure of enforcement in the cities is a failure of the major part of the land in population and influence.

Staking out an uncooperative role creates scope for states to mitigate warming
Jean Galbraith 17, Assistant Professor at University of Pennsylvania Law School, JD from the
University of California-Berkeley School of Law, Order of the Coif, BA in Social Studies and the
Comparative Study of Religion from Harvard University, “Book Review: Cooperative and Uncooperative
Foreign Affairs Federalism, Foreign Affairs Federalism: The Myth of National Exclusivity”, Harvard Law
Review, 130 Harv. L. Rev. 2131, Lexis
D. Climate Policy

Mitigating climate change is a challenge for all levels of government -- international, national, state, and
local. As Glennon and Sloane note, some states and cities have embraced climate change mitigation measures (pp. 62-
63). In doing so, states have often coordinated with each other and with foreign counterparts in both practical and
[*2149] expressivist ways (pp. 62-63). California's efforts are exceptionally notable. State legislation requires sweeping
emissions reductions; California and Quebec have sought to integrate their cap-and-trade programs; and California
has spearheaded a coalition of state and local governments around the world who have committed to climate policy. California even sent a
large and high-profile delegation to the United Nations conference on climate change in Paris in 2015.

The issue of climate policy is a rebuttal to all three of the "myths" identified by Glennon and Sloane. It is self-evidently a matter of both
domestic and foreign affairs; states and local governments are acting in this space; and some states and local governments are doing so in
progressive ways. The actions of state and local governments in this space invite constitutional inquiry. Can
California constitutionally regulate carbon emissions, enter into a highly formalized agreement with Quebec and softer
agreements with other subnational governments, and send delegations to international negotiating conferences?
Yet focusing exclusively on these questions would lead to a highly incomplete sense of the legal scope of California's power to act. For although
Glennon and Sloane do not mention it, California is acting amidst a welter of federal laws, regulations, and other executive branch actions
applicable to climate change. In 2007, in a lawsuit brought by liberal states against the EPA, the Supreme Court held that the federal Clean Air
Act applies to greenhouse gas emissions. This Act explicitly delegates authority to California to pursue stronger emissions [*2150] measures
for new motor vehicles than are undertaken at the federal level and in general involves states in the Act's enforcement through cooperative
federalism.

During the Obama Administration, state and local government efforts to reduce greenhouse gas emissions were not
only congruent with the aims of the Clean Air Act (as interpreted to apply to greenhouse gases), but also with the goals of the
executive branch. The EPA during the Obama Administration applauded and sought to facilitate state and local efforts. Its leading rule on
climate change mitigation measures, known as the Clean Power Plan, explicitly gave states substantial autonomy in crafting their own
approaches, although this rule is currently facing a court challenge brought by states that oppose federal efforts to regulate emissions. The
Obama White House expressed approval of the transnational coalitions that California and other state and local governments have joined in
seeking to address climate change.

All this positive reinforcement will presumably diminish or disappear under the Trump Administration. The Trump
Administration may even try to roll back climate change mitigation efforts by progressive states and cities, in
addition to undermining or reversing Obama era regulations and international commitments. If it does so, however, the
legal questions that such efforts would raise probably have fairly [*2151] little to do with the constitutional issues posed by traditional
foreign affairs federalism. Instead, they would center on administrative law -- around the interpretation of the Clean Air Act and the
laws and norms that govern regulatory practice -- as they had already come to do by the end of the George W. Bush
Administration.

***

These four illustrations are far from unique. Sometimes state and local government activity in relation to foreign affairs occurs
against a backdrop of federal inaction, as is the case with the incorporation of unratified human rights treaties into the municipal
law of progressive cities. But interaction is far more common, sometimes cooperative and sometimes full of
contestation. The executive branch approves of and provides some support for states and cities seeking to promote tourism or encourage
exports abroad. The federal government collaborates with states in determining U.S. international negotiating positions with respect to
insurance. In private international law, the federal government has shown strong interest in using state law rather than federal law to
implement certain treaties. And all levels of government deal with security -- both traditional and cyber -- and interact with each other over it.
To understand what is going on, we must focus on the political branches as much as (or even more than) the courts. And we must think not just
in terms of constitutional law, but also in terms of international law, administrative law, and state law.

[*2152] III. COOPERATIVE AND UNCOOPERATIVE FEDERALISM IN THE CONTEXT OF FOREIGN AFFAIRS

As foreign affairs federalism becomes increasingly interactive, how much will it resemble cooperative and uncooperative federalism in the
domestic context? At the very least, scholarship on cooperative and uncooperative federalism as a domestic matter, especially work focused on
the political branches, provides a valuable starting point for understanding foreign affairs federalism today. This scholarship offers
insights into how the federal government can incentivize state and local governments to help advance federal interests, how these
state and local governments can in turn influence and resist federal policy, and how Congress and the executive branch
can each use state and local action to build power at the expense of the other branch. These broad themes manifest themselves
in the foreign affairs context as well. Yet the foreign affairs context brings some additional complexities because of its ties to international
law and global governance and because it comes with stronger presidential powers. This leads to certain differences between
cooperative and uncooperative federalism in the realm of foreign affairs, in terms of both how practice proceeds and of
what doctrine should be.

A. Structural Implications

The interactions between the federal government and state and local governments in relation to foreign affairs mean that federal policy shapes
state and local policy. By providing assistance, financial and otherwise, to the sister-cities program, the federal government makes it easier for
cities to participate. By signaling its support for state "Buy American" laws, Congress encourages them -- and the Department of Transportation
incentivizes them even further by refusing to participate in contracts governed by state "Buy American" laws that are less strict than the federal
ones. In the context of immigration and climate change, the federal government incentivizes (and sometimes comes close to forcing) state and
local action in support of federal policy. All of these examples in the foreign affairs context reflect an "increasing concentration
of power at Washington in the instigation and supervision of local policies," just as cooperative federalism arrangements do in the
domestic context.

In work focused on the domestic context, Heather Gerken shows that the
interactive nature of modern federalism also
provides state and local governments with ways to influence federal policy. State and local actors exercise
"the power . . . of the servant," which offers the [*2153] chance "not just to complain about national
policy, but to help set it." In shaping federal policy, these actors are not simply employing the traditional tools of process
federalism; rather, it is their role in administering federal policy that gives them a say in the shape that this implementation will take. Yet the
scope of this role also limits what they can do: "power dynamics are fluid; minority rule is contingent, limited, and subject to reversal by the
national majority." In related work, Gerken and Jessica Bulman-Pozen elaborate on the ways in which state and local governments
can
engage in "uncooperative federalism," including by resisting federal policies that they are charged with
enforcing.

Building on the core insight that state and local governments can help shape federal policy through their roles in
implementing federal law, Bulman-Pozen further shows that these interactions can affect the distribution of
power between Congress and the executive branch. In a pair of articles, she describes the ways in which state and local activities can
strengthen the powers of one branch against the other. The more that Congress invites or effectively requires state and local participation in
the administration of a federal statutory regime, the more these actors can serve as checks on the executive branch's power to implement this
regime. On the flip side, such shared roles in implementing previously enacted statutory schemes can empower the executive branch and
subnational executive actors to work together in ways that crowd out the current Congress.

[*2154] Similar dynamics can occur with respect to foreign affairs federalism. Indeed, some of the examples that Gerken and Bulman-Pozen
focus on are issues that have transnational implications. With
regard to climate, for example, they show how states have used
the power of the servant to try to shape federal policy, including efforts by conservative states to push
back against the federal regulatory scheme and by progressive states to make it stronger. Bulman-Pozen also
uses climate as an example of how "federal and state executives negotiate without Congress" once a broad statutory scheme is in place. Some
payoffs for the foreign affairs context here are simply derivative: the
more that state and local governments enhance or reduce
federal efforts to mitigate climate change, then the more or less the United States does with respect to
addressing this global problem. But other implications relate specifically to how the United States engages internationally.
Continuing with the climate context, the extent to which President Obama could make commitments on behalf of the United States during the
negotiations for the 2015 Paris Agreement was largely limited by the scope of the Clean Air Act, since he had no realistic chance of getting new
congressional legislation that would advance his goals with respect to climate. But since California and other progressive state and local actors
were doing more than what the Clean Air Act required, President Obama could take this into account in setting the target to which the United
States was committing with respect to climate change mitigation. President Obama's option set was thus enhanced by state and local action in
the climate context.

Extinction
Dr. Yew-Kwang Ng 19, Winsemius Professor of Economics at Nanyang Technological University, Fellow
of the Academy of Social Sciences in Australia and Member of Advisory Board at the Global Priorities
Institute at Oxford University, PhD in Economics from Sydney University, “Keynote: Global Extinction and
Animal Welfare: Two Priorities for Effective Altruism”, Global Policy, Volume 10, Number 2, May 2019,
pp. 258–266

Catastrophic climate change

Though by no means certain, CCC causing global

extinction is possible due to interrelated factors of non-linearity,
cascading effects, positive feedbacks, multiplicative factors, critical thresholds and tipping points (e.g.
Barnosky and Hadly, 2016; Belaia et al., 2017; Buldyrev et al., 2010; Grainger, 2017; Hansen and Sato, 2012; IPCC 2014; Kareiva and Carranza,
2018; Osmond and Klausmeier, 2017; Rothman, 2017; Schuur et al., 2015; Sims and Finnoff, 2016; Van Aalst, 2006).7
A possibly imminent tipping point could be in the form of ‘an abrupt ice sheet collapse [that] could
cause a rapid sea level rise’ (Baum et al., 2011, p. 399). There are many avenues for positive feedback in global
warming, including:

• the replacement of an ice sea by a liquid ocean surface from melting reduces the reflection
and increases the absorption of sunlight, leading to faster warming;

• the drying of forests from warming increases forest fires and the release of more carbon; and

• higher ocean temperatures may lead to the release of methane trapped under the ocean floor,
producing runaway global warming.

Though there are also avenues for negative feedback, the scientific consensus is for an overall net
positive feedback (Roe and Baker, 2007). Thus, the Global Challenges Foundation (2017, p. 25) concludes, ‘The world is
currently completely unprepared to envisage, and even less deal with, the consequences of CCC’.

The threat of sea-level rising from global warming is well known, but there are also other likely and
more imminent threats to the survivability of mankind and other living things. For example , Sherwood and
Huber (2010) emphasize the adaptability limit to climate change due to heat stress from high environmental
wet-bulb temperature. They show that ‘even modest global warming could ... expose large fractions of the
[world] population to unprecedented heat stress’ p. 9552 and that with substantial global warming, ‘the area
of land rendered uninhabitable by heat stress would dwarf that affected by rising sea level’ p. 9555, making
extinction much more likely and the relatively moderate damages estimated by most integrated assessment models unreliably low.

While imminent extinction is very unlikely and may not come for a long time even under business as usual, the main point is that
we cannot rule it out. Annan and Hargreaves (2011, pp. 434–435) may be right that there is ‘an upper 95 per cent
probability limit for S [temperature increase] ... to lie close to 4°C, and certainly well below 6°C’.
However, probabilities of 5 per cent, 0.5 per cent, 0.05 per cent or even 0.005 per cent of excessive
warming and the resulting extinction probabilities cannot be ruled out and are unacceptable. Even if
there is only a 1 per cent probability that there is a time bomb in the airplane, you probably want to
change your flight. Extinction of the whole world is more important to avoid by
literally a trillion times.
 OFF
NEOLIBERALISM K
Focus on softening how the criminal justice system punishes naturalizes the neoliberal
social relations that sustain carceral geographies.
Brett Story & Judah Schept 18, Story is Assistant Professor in the School of Image Arts at Ryerson
University in Toronto; Schept is Associate Professor in the School of Justice Studies at Eastern Kentucky
University, “Against Punishment: Centering Work, Wages, and Uneven Development in Mapping the
Carceral State,” Social Justice, vol. 45, no. 4, 05/2018, pp. 7–33
These activists are challenging prison siting on the terrain of a just economic transition in Appalachia. They also deploy a racial justice analysis in their work, insisting that the eastern Kentucky economy not be built on the caging of Black and Brown people. What they perceive, which is

prison growth is only loosely tethered to punishment This reframing

often lost in sociological and criminological treatments of the prison, is that regimes. is important,

broadens the political horizons of

because it alternatives to incarceration a focus on possibility for those arguing for . We contend that

punishment as the work of the prison reveals the success of punishment as ideology, proscribing our
analytical vocabularies to questions of the suitability and scale of punishment, rather than questioning
the very materiality of the prison itself. There is, of course, a long and celebrated body of scholarship that lays the rise of mass incarceration at the feet of what has been called the “punitive turn,” the “culture of
control” (Garland 2001), the “punishment imperative” (Clear & Frost 2014), and the “get tough” or “tough on crime” movement. These works make some variation of the same argument: the rise of the carceral state is largely or exclusively due to changes in sentencing law and patterns
and a broader politics characterized by hardened attitudes toward crime. These works make valuable contributions to an understanding of such an unprecedented rise in imprisonment. They accurately note the harsher and broader scope of sentences that are constitutive of our national

the carceral state arose as the central political expression of neoliberal racial
reliance on incarceration. However, as Jordan Camp (2016) notes,

capitalism concerned with challenges to its legitimacy Camp argues that prison and police power .

became the predominant—and, crucially, the common-sense way for the state to respond to freedom —

movements Similarly, we contend that the prison is used as a political tool to resolve numerous crises of
.

the neoliberal moment, particularly those arising out of structural joblessness and chronic poverty. Evidence

First, as we know from recent work on carceral humanism, incarceration

from the present moment of the carceral state would seem to confirm our analysis.

and forms of custodial control do not necessarily need to rely on discourses of punishment for
legitimacy Indeed, historical examinations of the development of some punishment regimes
(Kilgore 2014a, Schept 2015).

locate practices of detention and imprisonment in logics of saving and treatment albeit (Platt 2009, Rothman 2002),

refracted through racialized selections of deserving subjectivities (Ward 2009, 228; 2012). Evidence from a number of places around the United States suggests a

The advent of reflection cottages, justice campuses, gender-

materialization of imprisonment in carceral institutions marked by different rhetoric if not different material conditions.

responsive prisons, and mental health jails would seem to suggest the carceral state’s adaptability
against and beyond punishment at least as a guiding logic , How if not an actual practice and experience (Braz 2006, Cullors-Brignac & Zuñiga 2014, Parks 2013, Schept 2015).

does punishment explain the stability and even growth of the carceral state when carceral institutions—
jails, prisons, juvenile detention centers, work release programs, etc.—expand through other guiding
logics and among people who reject punishment punishment itself can operate ideologically to ? Following suit,

mystify the animating forces of police and carceral power. The problem with punishment as a guiding
concept for critique is that it is indexed to a deviant act. Its very demarcation alludes to the existence of
a thing to be punished. That thing—which in the case of prisons we call crime—is bracketed off as self-
evident and beyond debate. The concept of punishment thus succeeds in framing any contestation over
particular practices deemed punitive in terms of degree and of type how much punishment is enough or :

too much, and what should be its proper character and form The fact that crime itself has been ?

historically demonstrated to be both a relative and mutable sociolegal category, let alone one that, as
Linebaugh (2004/2006) argues, belongs to capitalism and its vicissitudes, is allowed little space within
the characterization of incarceration as a regime of punishment. The same goes, necessarily, for the
category of the criminal , which, as Gilmore (2009, 80) points out, “has long been on the rise in the lexicon of putatively transparent or selfexplanatory terms – like race or gender – used to designate fundamental (whether fixed or mutable)

Disturbing the prison as a “key ingredient of our common sense

differences between kinds of people.” thus requires ” (Davis 2003, 18)

thinking less about punishment and more about the functions of, for example, property, work, and
race as social relations ordering the contemporary social landscape the political project of . In other words,

rethinking the practice of incarceration and of abolishing prisons and other like structures of captivity
and premature death will fail so long as the terms we use to describe or denounce them hinge on the
assumption that prisons emerge out of the logic of punishment rather than vice versa. Such thinking ,

produces a critique of mass incarceration on the grounds that it is a disproportionate, unaffordable,

excessively cruel, or racially biased response to the problem of crime Though it may and the punitive feeling crime ostensibly generates.

also be those things, the problem is that the prison regime is rendered itself correctable or reformable
within such a framework Confusing the ideology that “matters along the prison’s entire continuum
. ” (Gilmore

with that of punishment leaves the logics, relations, and interests that do actually produce prisons,
2007, 243)

prisoners, and the carceral state wholly intact. A The historian Barbara Jeanne Fields (1990, 106), in her own investigation of the production of race as ideology, instructively writes,

commonplace that few stop to examine holds that people are more readily oppressed when they are
already perceived as inferior by nature The reverse is more to the point People are more readily . .

perceived as inferior by nature when they are already seen as oppressed The challenge for prison .

activists, reformers, and abolitionists alike, then, is not that of convincing people that African Americans
and other highly incarcerated and criminalized groups are not indeed inferior , for that is not how
ideology work The task is rather to abolish the very institutions and relations that oppress them Doing
s. .

so requires demystifying the prison as itself a set of social relations, including wage labor, one which
produces ideas of punishability rather than the product of punitive feeling or the ideology of
punishment. Conclusion In 2011, Kentucky passed House Bill 463, the Public Safety and Offender Accountability Act, which was designed to reduce the number of people in prison through nominal sentencing reform. In addition, in recent years the state organized a
bipartisan sentencing commission and the governor, a Tea Party Republican, signed an executive order designed to ease the ability of former prisoners to apply for state jobs. These indications of reform, however, belie clear signals of recalcitrance. The state is considering reopening three
private prisons as a response to massively crowded jails and, as we discuss above, federal prison growth continues in eastern Kentucky. If Kentucky were a country, it would have the seventh highest incarceration rate in the world. Its incarcerated population has grown about 45 percent

has been our argument that

since 2000, far outpacing the nation’s 13 percent rate; at this same rate, a recent Vera Institute of Justice report concludes, everyone in Kentucky would be incarcerated in 119 years (Kang-Brown et al. 2018). It

the politics of punishment reform fail to offer a meaningful barometer of broad change and can, in fact,
signal the reformation of the carceral state rather than its retreat Instead, we argue that attachments to .

work—both the wage relation and the work ethic— rather than attachments to punishment constitute
the animating ideological pillar of Kentucky’s carceral state . Certain levels of unemployment and wagelessness share with prisons a reified status in the modern landscape, but also a
historical contingency that tells us, importantly, that it could be otherwise. Although high rates of unemployment might be essential from the perspective of capital to maintain working-class discipline and depressed wages, their disciplinary power only works if struggles and aspirations
are also tied to wage labor; one must see jobs as central to one’s capacity to both materially survive and have value in the capitalist economy. This is also to suggest that the joblessness of poor Appalachians cannot be seamlessly disentangled from the structural joblessness that both

Wage labor thus offers not only a site from which to understand the
characterizes and follows the predominantly racialized population of prisoners across the country.

political work of the carceral state beyond punishment, but also can serve as an organizing platform
across key struggles and disparate geographies Challenging the production of poverty and wagelessness .

—of those who are incarcerated as well as those for whom prisons figure as possible workplaces—
should thus constitute a core demand and target of activist focus and decarceration efforts For it is .

precisely as a social system that inheres poverty and precarity that work bears so meaningfully, and
devastatingly, on the carceral production of surplus life The relationship of the prison to the labor .

market, the wage relation, and normative attachments to work must be considered central to any
meaningful efforts to devolve, decarcerate, and eventually abolish the prison as an institution and idea . This

this
is also to suggest an insurmountable contradiction between the so-called prison reform efforts of those, like the Koch brothers, who simultaneously act to undermine worker power and living wages among both the urban poor and the rural poor. Indeed,

contradiction points to some of the larger problems with contemporary bipartisan reform efforts.
Although decades of research demonstrate that the growth of the prison system is intimately tied up
with the problems of structural joblessness mainstream prison , poverty economies, and stagnation of workers’ wages following the economic crises of the early 1970s,

reform continues to be propagated as if autonomous from the ongoing issues of labor power and
public entitlements. Abolitionist writing and organizing must be imagined as the spatial enactment of
abolition democracy for sacrifice zones like Central Appalachia A sacrifice zone is a geographic area .

impaired by environmental damage or by economic disinvestment The devastation . Both have ravaged eastern Kentucky.

brought upon this region and the space it has opened up for prison boosters to pitch carceral
infrastructure as the future to which locals must hitch their aspirations tell us that simply disrupting the
organizing logics that produce prisons is not enough Abolitionist scholarship must think through the .

historical relationships and patterns that have underdeveloped the region and produced the conditions
of possibility for the prison in the first place What this means, then, is that abolitionist strategy and
.

scholarship must focus on questions of dispossession, the wage relation, and uneven development,
because these are the issues that, left unaddressed, underwrite the
—along with, but not necessarily less important than, crime and punishment policy—

continued health of the carceral state even during periods of so-called reform.

Neoliberalism guarantees extinction and social crisis---the judge has an intellectual

obligation to evaluate the social relations that underpin the plan prior to evaluating
the outcome of the policy---vote NEG because the system the AFF partakes in is
fundamentally unethical
Pala Basil Mera 14, Victoria University of Wellington philosophy PhD, Accounting For Apocalypse Re-
Thinking Social Accounting Theory And Practice For Our Time Of Social Crises And Ecological Collapse,
https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/3686/thesis.pdf?sequence=2

Ecologically too, the situation is dire. Of the many measures of ecological well-being – topsoil loss, groundwater
depletion, chemical contamination, increased toxicity levels in human beings, the number and size of “dead zones” in the
Earth’s oceans, and the accelerating rate of species extinction and loss of biodiversity – the increasing evidence suggests that the
developmental trajectory of the dominant economic culture necessarily causes the mass extermination of non-human communities, the
systemic destruction and disruption of natural habitats, and could ultimately cause catastrophic destruction of the
biosphere. Ecological drawdown, increasing toxicity, habitat destruction, and mass extinction The latest Global Environmental Outlook
Report published by the United Nations Environment Program (UNEP), the GEO-5 report, makes for sobering reading. As in earlier reports, the
global trends portrayed are of continuing human population growth, expanding economic growth,6 and as a consequence severe forms of
ecological degradation (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007). The
ecological reality described is of ecological
drawdown (deforestation, over-fishing, water extraction, etc.) (UNEP, 2012, pp. 72, 68, 84, 102-106, ); increasing toxicity
of the environment through chemical and waste pollution, with severe harm caused to human and non-human communities alike (pp. 173-
179); systematic habitat destruction (pp. 8, 68-84) and climate change (33-60), which have decimated the number of
species on Earth, threatening many with outright extinction (pp. 139-158). Climate disruption The most serious ecological threat
on a global scale is climate disruption, caused by the emission of greenhouse gases from burning fossil fuels, other industrial activities, and land
destruction (UNEP, 2012, p. 32). The GEO-5 report states that “[d]espite attempts to develop low-carbon economies in a number of countries,
atmospheric concentrations of greenhouse gases continue to increase to levels likely to push global temperatures beyond the internationally
agreed limit of 2° C above the pre-industrial average temperature” (UNEP, 2012, p. 32). Concentrations of atmospheric methane have more
than doubled from preindustrial levels, reaching approximately 1826 ppb in 2012; the scientific consensus is that this increase is very likely due
predominantly to agriculture and fossil fuel use (IPCC, 2007). Scientists
warn that the Earth’s ecosystems are nearing
catastrophic “tipping points” that will be marked by mass extinctions and unpredictable changes on a scale
unseen since the glaciers retreated twelve thousand years ago (Pappas, 2012). Twenty-two eminent scientists warned recently in the journal,
Nature, that humans are likely to have triggered a planetary-scale critical transition “with the potential to transform Earth rapidly and
irreversibly into a state unknown in human experience”, which means that “the biological resources we take for granted at present may be
subject to rapid and unpredictable transformations within a few human generations” (Barnofsky et al., 2012). This means that human beings
are in serious trouble, not only in the future, but right now. The pre-industrial level of carbon dioxide concentration was about 280 parts per
million (ppm). The Intergovernmental Panel on Climate Change (IPCC) estimates concentrations could reach between 541 and 970 ppm by the
year 2100. However, many climate scientists consider that levels should be kept below 350 ppm in order to avoid “irreversible catastrophic
effects” (Hansen et al., 2008). “Catastrophic warming of the earth” would mean a planet that is too hot for life – that is, any
life, and all life (Mrasek, 2008). Where are we heading? We need to analyze the above information and ask the simple questions: what does
it signify and where will it lead? In terms of the social crises of inequalities, the pattern of human development suggests clearly that
although capitalism is capable of raising the economic productivity of many countries as well as international trade,
it also produces social injustices on a global scale. The trajectory of capitalist economic development that people appear
locked into is of perpetual growth that also produces significant human and social suffering. In terms of the
ecological situation, the mounting evidence from reports, such as those published by UNEP, suggest that a full-scale ecocide will
eventuate and that a global holocaust is in progress which is socially pathological and biocidal in its scope (UNEP, 2012; see also, UNEP,
1997, 1999, 2002, 2007). Assuming the trends do not change, the endpoint of this trajectory of perpetual economic growth,
ecological degradation, systemic pollution, mass species extinction and runaway climate change, which human beings appear locked into, will
be climate apocalypse and complete biotic collapse. 1.1 ACCOUNTING RESEARCH AND INTELLECTUAL FAILURE Given the serious and life-
threatening implications of these social and ecological crises outlined above, it would be reasonable to expect they should be central to
academic concerns, particularly given the responsibilities of academics as intellectuals. As the people whom society subsidizes to carry out
intellectual work,7 the primary task of academics is to carry out research that might enable people to deepen their understanding of how the
world operates, ideally towards the goal of shaping a world that is more consistent with moral and political principles, and the collective self-
interest (Jensen, 2013, p. 43). Given that most people’s stated philosophical and theological systems are rooted in concepts of
justice, equality and the inherent dignity of all people (Jensen, 2007, p. 30), intellectuals have a particular responsibility to
call attention to those social patterns of inequality which appear to be violations of such principles, and to
call attention to the destructive ecological patterns that threaten individual and collective well-being. As a “critic and conscience of society,” 8
one task of intellectuals is to identify issues that people should all pay attention to, even when – indeed, especially
when – people
would rather ignore the issues (Jensen, 2013, p. 5). In view of this, intellectuals today should be focusing attention on the hard-to-
face realities of an unjust and unsustainable world. Moreover, intellectuals in a democratic society, as its “critic and conscience”, should serve
as sources of independent and critical information, analyses and varied opinions, in an endeavour to provide a meaningful role in the formation
of public policy (Jensen, 2013c). In order to fulfil this obligation as “critic and conscience,” intellectuals
need to be willing to
critique not only particular people, organizations, and policies, but also the systems from which they emerge. In other words,
intellectuals have to be willing to engage in radical critique. Generally, the term “radical” tends to suggest images of extremes, danger, violence,
and people eager to tear things down (Jensen, 2007, p. 29). Radical, however, has a more classical meaning. It comes from the Latin –radix,
meaning “root.” Radical critique in this light means critique or analysis that gets to the root of the problem. Given that the patterns of
social inequality and ecocidal destruction outlined above are not the product of a vacuum, but instead are the product
of social systems, radical critique simply means forms of social analysis, which are not only concerned about these social
and ecological injustices but also trace them to the social systems from which they emerged, which would subject these
very systems to searching critiques. Such searching critique is challenging because, generally, the dominant groups which
tend to subsidize intellectuals (universities, think tanks, government, corporations) are the key agents of the social
systems that produce inequalities and destroy ecosystems (Jensen, 2013, p. 12). The more intellectuals choose
not only to identify patterns but also highlight the pathological systems from which they emerge , the
greater the tension with whoever “pay[s] the bills” (ibid .). However, this may arguably be unavoidable today, given that
the realities of social inequality and ecological catastrophe show clearly that our social systems are already in crisis, are pathological, and in
need of radical change.9 To adopt a radical position, in this light, is not to suggest that we simply need to abolish capitalism, or to imply that
if we did so all our problems would be solved. For one thing, such an abstract argument has little operational purchase in terms of specifying
how to go about struggling for change. For another thing, as this thesis will discuss, capitalism is not the only social system that we ought to be
interrogating as an important systemic driver of social and ecological crises. Moreover, to adopt
a radical position does not mean
that we have any viable “answers” or “solutions” in terms of the alternative institutions, organizations and social
systems that we could replace the existing ones with. There is currently no alternative to capitalism that appears to be viable,
particularly given the historical loss of credibility that Marxism and socialism has suffered. As history has shown, some of the self-proclaimed
socialist and communist regimes have had their own fair share of human rights abuses and environmental disasters, and the global left has thus
far not been able to articulate alternatives that have managed to capture the allegiances of the mainstream population. Furthermore, given
the depth, complexity, and scale of contemporary social and ecological crises, I am not sure if there are
any viable alternatives or, for that matter, any guarantees that we can actually prevent and change the disastrous course of
contemporary society. I certainly do not have any solutions. What I would argue, however, is that if we are to have any chance
of not only ameliorating but also substantively addressing these social and ecological problems,
before we can talk about alternatives or potential “solutions”, we first need to develop a clear
understanding of the problems. And, as argued above, this involves, amongst other things, exploring why and how
the existing social systems under which we live are producing the patterns of social inequality and
ecological unsustainability that make up our realities today.10 To adopt a radical stance, in this light, is simply to insist that we
have an obligation to honestly confront our social and ecological predicament and to ask difficult questions
about the role that existing social systems might be playing in producing and exacerbating them.
 Adv 1
Their internal link card isn’t about detention, but civil liberties generally.

Targeted killing’s vital to counterterrorism---disrupts leadership and makes carrying

out attacks impossible
Kenneth Anderson 13, Professor of International Law at American University, June 2013, “The Case
for Drones,” Commentary, Vol. 135, No. 6

T argeted k illing of high-value terrorist targets, by contrast, is the end result of a long, independent intelligence
process. What the drone adds to that intelligence might be considerable , through its surveillance capabilities -- but
much of the drone's contribution will be tactical, providing intelligence that assists in the planning and execution of the
strike itself, in order to pick the moment when there might be the fewest civilian casualties .

Nonetheless, in conjunction with high-quality intelligence, drone

warfare offers an unparalleled means to strike directly
at terrorist organizations without needing a conventional or counterinsurgency approach to reach
terrorist groups in their safe havens. It offers an offensive capability, rather than simply defensive measures, such as
homeland security alone. Drone warfare offers a raiding strategy directly against the terrorists and their leadership.

If one believes, as many of the critics of drone warfare do, that the proper strategies of counterterrorism are essentially defensive -- including
those that eschew the paradigm of armed conflict in favor of law enforcement and criminal law -- then the strategic virtue of an offensive
capability against the terrorists themselves will seem small. But that has not been American policy since 9/11, not under the Bush
administration, not under the Obama administration -- and not by the Congress of the United States, which has authorized hundreds of billions
of dollars to fight the war on terror aggressively. The
United States has used many offensive methods in the past dozen years:
Regime change of states offering safe havens, counter-insurgency war, special operations, military and
intelligence assistance to regimes battling our common enemies are examples of the methods that are just of
military nature.

Drone warfare today is integrated with a much larger strategic counterterrorism target -- one in which, as
in Afghanistan in the late 1990s, radical Islamist groups seize governance of whole populations and territories
and provide not only safe haven, but also an honored central role to transnational terrorist groups . This
is what current conflicts in Yemen and Mali threaten , in counterterrorism terms, and why the United States, along
with France and even the UN, has moved to intervene militarily. Drone warfare is just one element of overall strategy, but it
has a clear utility in disrupting terrorist leadership . It makes the planning and execution of complex plots
difficult if only because it is hard to plan for years down the road if you have some reason to think you will be struck down by a drone but
have no idea when. The unpredictability and terrifying anticipation of sudden attack, which terrorists have
acknowledged in communications, have a significant impact on planning and organizational
effectiveness .
Indefinite detention reforms result in catastrophic terrorism---releases terrorists and
kills intel gathering
Jack Goldsmith 9, Henry L. Shattuck Professor at Harvard Law School, Long-Term Terrorist Detention
and Our National Security Court,
http://www.brookings.edu/~/media/research/files/papers/2009/2/09%20detention
%20goldsmith/0209_detention_goldsmith.pdf

These three concerns challenge the detention paradigm. They do nothing to eliminate the need for
detention to prevent detainees returning to the battlefield. But many believe that we can meet this
need by giving trials to everyone we want to detain and then incarcerating them under a theory of
conviction rather than of military detention. I disagree. For many reasons, it is too risky for the U.S.
government to deny itself the traditional military detention power altogether, and to commit itself
instead to try or release every suspected terrorist. ¶ For one thing, military detention will be necessary
in Iraq and Afghanistan for the foreseeable future. For another, we likely cannot secure convictions of
all of the dangerous terrorists at Guantánamo, much less all future dangerous terrorists , who
legitimately qualify for non-criminal military detention. The evidentiary and procedural standards of
trials, civilian and military alike, are much higher than the analogous standards for detention. With
some terrorists too menacing to set free, the standards will prove difficult to satisfy. Key evidence in a
given case may come from overseas and verifying it, understanding its provenance, or establishing its
chain of custody in the manners required by criminal trials may be difficult. This problem is exacerbated
when evidence was gathered on a battlefield or during an armed skirmish. The problem only grows
when the evidence is old. And perhaps most importantly, the use of such evidence in a criminal process
may compromise intelligence sources and methods, requiring the disclosure of the identities of
confidential sources or the nature of intelligence-gathering techniques, such as a sophisticated
electronic interception capability. ¶ Opponents of non-criminal detention observe that despite these
considerations, the government has successfully prosecuted some Al Qaeda terrorists—in particular,
Zacharias Moussaoui and Jose Padilla. This is true, but it does not follow that prosecutions are
achievable in every case in which disabling a terrorist suspect represents a surpassing government
interest. Moreover, the Moussaoui and Padilla prosecutions highlight an under-appreciated cost of
trials, at least in civilian courts. The Moussaoui and Padilla trials were messy affairs that stretched, and
some observers believe broke, our ordinary criminal trial conceptions of conspiracy law and the rights of
the accused, among other things. The Moussaoui trial, for example, watered down the important
constitutional right of the defendant to confront witnesses against him in court, and the Padilla trial
rested on an unprecedentedly broad conception of conspiracy.15 An important but under-appreciated
cost of using trials in all cases is that these prosecutions will invariably bend the law in ways unfavorable
to civil liberties and due process, and these changes, in turn, will invariably spill over into non-terrorist
prosecutions and thus skew the larger criminal justice process.16¶ A final problem with using any trial
system, civilian or military, as the sole lawful basis for terrorist detention is that the trials can result in
short sentences (as the first military commission trial did) or even acquittal of a dangerous terrorist.17
In criminal trials, guilty defendants often go free because of legal technicalities, government inability to
introduce probative evidence, and other factors beyond the defendant's innocence. These factors are all
exacerbated in terrorist trials by the difficulties of getting information from the place of capture, by
classified information restrictions, and by stale or tainted evidence. One way to get around this problem
is to assert the authority, as the Bush administration did, to use non-criminal detention for persons
acquitted or given sentences too short to neutralize the danger they pose. But such an authority would
undermine the whole purpose of trials and would render them a sham . As a result, putting a suspect
on trial can make it hard to detain terrorists the government deems dangerous. For example, the
government would have had little trouble defending the indefinite detention of Salim Hamdan, Osama
Bin Laden's driver, under a military detention rationale. Having put him on trial before a military
commission, however, it was stuck with the light sentence that Hamdan is completing at home in
Yemen.¶ As a result of these considerations, insistence on the exclusive use of criminal trials and the
elimination of non-criminal detention would significantly raise the chances of releasing dangerous
terrorists who would return to kill Americans or others. Since noncriminal military detention is clearly a
legally available option—at least if it is expressly authorized by Congress and contains adequate
procedural guarantees—this risk should be unacceptable. In past military conflicts, the release of an
enemy soldier posed risks. But they were not dramatic risks, for there was only so much damage a lone
actor or small group of individuals could do.18 Today, however, that lone actor can cause far more
destruction and mayhem because technological advances are creating ever-smaller and ever-deadlier
weapons. It would be astounding if the American system, before the advent of modern terrorism, struck
the balance between security and liberty in a manner that precisely reflected the new threats posed by
asymmetric warfare. We face threats from individuals today that are of a different magnitude than
threats by individuals in the past; having government authorities that reflect that change makes sense.

Judicial legitimacy doesn’t spill over to solve anything

Law & Chang 11 -- David S. Law, Law and Political Science Professor at Washington University in St.
Louis, Visiting Scholar at New York University, Visiting Professor and Fulbright Scholar at National Taiwan
University College of Law. Wen-Chen Chang, Law Professor at National Taiwan University. [The Limits of
Global Judicial Dialogue, Washington Law Review 86, http://ssrn.com/abstract=1798345]

This Article challenges these claims on empirical grounds and offers an alternative account of the actual reasons for which
constitutional courts engage in comparative analysis. First, it is both conceptually and factually inaccurate to characterize
the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of
“dialogue.” Second, judicial interaction is neither a necessary nor a sufficient cause of constitutional
globalization. Rather, the impact of such interaction on the extent to which judges engage in
comparativism is dwarfed by institutional and structural variables that lie largely beyond judicial control.
The basis of our empirical argument concerning the effects of judicial interaction and reasons for judicial comparativism is a comparative case
study of the Constitutional Court of the Republic of China (Taiwan), which is akin to a natural experiment in the capacity of a constitutional
court to make use of foreign law even when it is largely deprived of contact with other courts. Taiwan’s precarious diplomatic situation ensures
that the members of its Constitutional Court are effectively precluded from participating in international judicial gatherings or visits to foreign
courts. Nevertheless, Taiwan’s Constitutional Court nearly always engages in extensive comparative constitutional analysis, either expressly or
implicitly, when rendering its decisions. To explain how and why the Court makes use of foreign law notwithstanding its isolation, we combine
quantitative analysis of citations to foreign law in the Court’s published opinions with indepth interviews of numerous current and former
members of the Court and their clerks.

We conclude that “global judicial dialogue” plays a much smaller role in shaping a court’s utilization of
foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and
(b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in
foreign law. Our conclusion that institutional factors outweigh judicial dialogue in determining a court’s reliance
on foreign law helps to explain the behavior of not only the Taiwanese Constitutional Court, but also the United States
Supreme Court. Notwithstanding the fact that American justices enjoy unsurpassed opportunities to interact
with judges from other countries, comparative analysis plays a less frequent role in their own constitutional
jurisprudence than in that of their foreign counterparts. Openness on the part of individual justices to foreign law
ultimately cannot compensate for the fact that the hiring and instructional practices of American law
schools neither demand nor reward the possession of foreign legal expertise.

Our research also demonstrates that judicial opinions are a highly misleading source of data about judicial usage
of foreign law. As our interviews with members of the Taiwanese Constitutional Court reveal, the frequency with which a court cites
foreign law in its opinions does not necessarily reflect the extent to which it actually considers foreign law. Analysis of judicial opinions alone
may lead scholars to conclude mistakenly that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine.

Credibility loss from detention is irreversible

Anne Marie Drew 9, prof at US Naval Academy, Closing Guantanamo will be a mistake,
www.csmonitor.com/Commentary/Opinion/2009/0911/p09s01-coop.html

Whatever moral authority America has lost by its treatment of these detainees will not be regained by
moving them. Whatever mistakes we made will not be erased. Closing Gitmo will not make us safer. Many people believe that the executive
order Mr. Obama issued just two days after taking office means shutting down torture chambers and freeing innocent detainees, held for years without due
process. It does no such thing. The
problems, real or imagined, will simply move if the camps close. There is no geographic cure for
Gitmo. The executive order does not release the suspects.
If they are not freed or deported, then they will be transferred.
But moving them to another prison somewhere in the U nited States seems pointless at best and dangerous
at worst.

Multilat is outdated, bogged down, and too complex.

Ferry 18 Jean Pisani-Ferry, Economics Professor with Sciences Po of Paris and the Hertie School of
Governance of Berlin, former campaign director for Emmanuel Macron and Commissioner-General of
France Stratégie, the Founding Director of the think tank Bruegel. [Should we give up on global
governance? Policy Contribution 17, October 2018, https://bruegel.org/wp-
content/uploads/2018/10/PC-17-2018.pdf (table 1 omitted)]//BPS
C. Obsolescence of global rules and institutions Although the previous argument primarily rests on the broad pattern of international trade and
finance, the adverse effects of external liberalisation can be compounded by inadequate governance. As far as trade
is concerned, two cases in point are, first, inertia in the categorisation of countries, especially the fact that emerging countries, including China,
still enjoy developing country status in the WTO; and, second, failures to enforce the adequate protection of intellectual property (an issue on
which the EU recently joined the US and filed a complaint at the WTO against Chinese practices; see European Union, 2018). These grievances,
and others concerning subsidies or investment, are not new: they were clearly spelled out by policymakers from the Obama administration (see
for example, Schwab, 2011, and Wu, 2016). The underlying concern is that the systemic convergence on a market economy template that was
expected from participation in the WTO has failed to materialise. The rules and institutions of global trade have brought shallow convergence
but not the deeper alignment of economic systems that was hoped for. More generally, existing rules and institutions were
conceived for a different world. This is very apparent in the trade field: the GATT/WTO framework dates from what Baldwin (2016)
has called the “first unbundling” of production and consumption. They were not designed for the “second unbundling” of knowledge and
production that gave rise to the emergence of global value chains. For decades, the implicit assumption behind the structure of trade
negotiations has been that nations have well-defined sectoral trade interests: they are either exporters or importers. But in a world of global
value chains, they are both importers and exporters of similar products simultaneously. Even if the principles of multilateralism
remain valid, important features of the rules and institutions in which they are embedded are
increasingly outdated. In the same way, opening to capital movements was supposed to result in net financial flows from savings-rich
to savings-poor countries. What has happened instead is a massive increase in gross flows resulting in the interpenetration of financial systems
and the coexistence of sizeable external assets and liabilities. The consequence has been the emergence of a global financial cycle (see for
example Rey, 2017) and of policy dilemmas that are quite different from those arising in a simple Mundell-Fleming framework, in which
interdependence takes place through net inflows and outflows of capital. Developments in the climate field further illustrate
the point. The 1997 Kyoto Protocol was negotiated under the assumption that the bulk of greenhouse gas emissions would continue to
originate in the advanced countries. But by the time the Protocol was meant to enter into force, it was clear already that the hypothesis was
deeply wrong. The exemption of developing countries from emissions reductions was one of the reasons why the US did not ratify the treaty.
The failed Copenhagen agreement of 2009 was an attempt to replicate Kyoto on a global scale, but there
was no consensus for
such an approach. Rules can be reformed and institutions can adapt. But this is a long and demanding
process, especially when it requires unanimity, when participating countries have diverging interests
and when changes require ratification by parliaments where there is no majority to support them.
Global rules therefore exhibit a strong inertia that often prevents necessary adaptations. Trade rules, amendments
to which require unanimity, are a case in point. Institutions are nimbler and can adapt to changing priorities or perspectives on
interdependence. The IMF for example has succeeded in adjusting to major changes in the international economic regime and major shifts in
the intellectual consensus. But even institutions face limitations to their ability to keep up with underlying transformations. This is one of the
reasons why solutions to emerging problems have often been looked for outside the existing multilateral, institution-based governance
framework (Table 1). D. The imbalances of global governance A
further reason for popular dissatisfaction with global governance
is its unbalanced nature. The deeper international integration becomes, the broader the scope of policy
its management should cover, and the more acute the tension between the technical requirements of global interdependence and the
domestically-rooted legitimacy of public policies. This is most apparent in the field of taxation. International tax optimisation by multinationals
has become an issue of significant relevance and it is estimated that 40 percent of their profit is being artificially shifted to low-tax countries –
with major consequences for national budgets (Tørsløv et al, 2018). But the fact that taxation remains at the core of sovereign prerogatives
limits the scope and ambition of initiatives conducted at international level. The result, which can be regarded as an illustration of Rodrik’s
trilemma, is that global coordination in tax matters falls short of what equity-conscious citizens regard as desirable and, at the same time,
exceeds what sovereignty-conscious citizens consider acceptable. The
imbalances of global governance are by no means
limited to the taxation field. The same can be found in a series of domains, for example biodiversity and
the preservation of nature. E. Increased complexity The final obstacle to multilateral solutions has to do with
the sheer complexity of the challenges global governance has to tackle. In recent decades channels of international
interdependence have both multiplied and diversified. They now link together countries with significantly differing levels of technical, economic
or financial development. Because they have developed outside the scope of negotiated rules and established institutions, some of channels
of interdependence also escape the reach of international agreements to an unprecedented degree. This
is especially, but not only, the case of the internet and the multiple networks that rely on it. The world does not fit anymore the usual
representation whereby individual nations trade goods, capital and technology. Even
putting aside geopolitical consequences
and assuming a shared commitment to openness and multilateral solutions, such complexity is bound to
test the limits of existing international governance arrangements.
 Adv 2
The plan sets a precedent that shreds overall presidential power
Kenneth Klukowski 11, Research Fellow, Liberty University School of Law; Fellow and Senior Legal
Analyst, American Civil Rights Union; National-Bestselling Author. George Mason University School of
Law, J.D. 2008; University of Notre Dame, B.B.A. 1998, “MAKING EXECUTIVE PRIVILEGE WORK: A MULTI-
FACTOR TEST IN AN AGE OF CZARS AND CONGRESSIONAL OVERSIGHT” 2011, 59 Clev. St. L. Rev. 31)

VI. CONCLUSION Most controversies between Congress and the White House over information are decided more
by politics than by law, and so a settlement is usually reached favoring the party with the public wind to its back . n348
Questions of law should not be decided in that fashion. Therefore, the reach and scope of executive privilege
should be settled by the courts in such situations, so that the President's power is not impaired whenever the
political wind is in the President's face and at his opponents' backs , or the President is inappropriately shielded when political tides flow
in his favor. While the best outcome in any interbranch dispute is the political branches reaching a settlement, "such compromise may not always be available, or even desirable." n349 It is not

desirable where it sets a precedent that degrades one of the three branches of government. If one branch
of government demands something to which it is not constitutionally entitled and that the
Constitution has fully vested in a coequal branch, the vested branch should not be required to
negotiate on the question. Negotiation usually involves compromise. This negotiation would often result in one branch needing
to cede to the other, encouraging additional unconstitutional demands in the future. Though this may perhaps be a quicker route to a
resolution, it disrupts the constitutional balance in government. As the Supreme Court has recently explained, "'convenience and efficiency are

not the primary objectives--or the hallmarks--of democratic government.'" n350 President Reagan declared that "you aren't President; you are

temporarily custodian of an institution, the Presidency . And you don't have any right to do away with any
of the prerogatives of that institution, and one of those is executive privilege . And this is what was being
attacked by the Congress." n351 Thus, any White House has the obligation to fight to protect executive privilege, and
the courts should draw the line to preserve that constitutional prerogative. Likewise, there are times when it is the President who is refusing to
give Congress its due under the Constitution, where Congress must assert its prerogatives for future generations. Conversely, where confidentiality is not warranted, courts must ensure public
disclosure and accountability.

Flexible executive power solves terrorism, rogue states, and WMD prolif – new legal
checks are existentially dangerous
John Yoo 17, J.D. from Yale, Emanuel Heller Professor of Law and director of the Korea Law Center, the
California Constitution Center, and the Law School’s Program in Public Law and Policy, "Trump’s Syria
Strike Was Constitutional", National Review, https://www.nationalreview.com/2017/04/trump-syria-
strike-constitutional-presidents-have-broad-war-powers/

Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power. If a
president continues to wage war without congressional authorization, as in Libya, Kosovo, or Korea, it is only because Congress has chosen not to exercise its easy check. We should not confuse a desire to escape political

A radical change in the system for making war might appease critics of presidential
responsibility for a defect in the Constitution.

power. But it could also seriously threaten American national security. In order to forestall another 9/11
attack, or take advantage of a window of opportunity to strike terrorists or rogue nations , the executive

branch needs flexibility. It is not hard to think of situations where congressional consent cannot be
obtained in time to act. Time for congressional deliberation, which can lead to passivity and isolation and not smarter decisions, will come at
the price of speed and secrecy. The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents can take
the initiative, and Congress can use its funding power to check presidents . Instead of demanding a
legalistic process to begin war, the Framers left war to politics. As we confront the new challenges of terrorism,
rogue nations, and WMD proliferation, now is not the time to introduce sweeping, untested changes in the
way we make war.
LAWS prolif boosts crisis stability in territorial conflict hotspots
Horowitz et al. 16. Michael C. Horowitz is Associate Professor of Political Science and Associate
Director of Perry World House at the University of Pennsylvania. Sarah E. Kreps is Associate Professor of
Government at Cornell University. Matthew Fuhrmann is Associate Professor of Political Science at Texas
A&M University and Visiting Associate Professor at Stanford University’s Center for International
Security and Cooperation. 10/2016. “Separating Fact from Fiction in the Debate over Drone
Proliferation.” International Security, vol. 41, no. 2, pp. 7–42.

Beyond the use of drones in ongoing military conflicts is the question of how UAV deployments may influence stability in
contested regions of the world. Pessimists concerned about drone proliferation fear that states might take cross-border actions
with fewer reservations if they can attack without placing their soldiers at risk. Such action could be particularly destabilizing in
areas where countries are already prone to mistrust, such as the East China and South China Seas. Michael Boyle argues, for instance, “The risks of a conflict spiral arising

from the shoot-down of the drone or an accident of some kind in the East China Sea are real and potentially dangerous.”96 Despite the technical limitations of armed drones, it is

possible that a state might attempt to carry out drone strikes on an adversary’s territory, potentially triggering a
crisis if the UAV is shot down. It is more likely, however, that countries would use drones for persistent surveillance
in a contested area. Indeed, this is a case where unarmed drones could carry significant, possibly salutary, implications for
international security. Most international disputes arise from border disagreements ,97 where the primary risk of

escalation stems from miscommunication and misinterpretation, rather than from a decision to change
the status quo. In the maritime arena alone, there are more than 430 bilateral boundaries that are not
governed by formal agreements.98 States concerned with upholding their claims in these boundary areas
might be especially drawn to using drones for persistent surveillance given the technology’s superior endurance, and because states could
“test the waters” with less risk than would be incurred with a manned equivalent.99 Moreover, the ability to substitute robots for people might make countries more likely to deploy drones
into contested regions and behave more assertively because the costs of losing drones seem lower.100 If deployments move from close to the border to inside an adversary’s territory, there is
some risk of triggering an armed confrontation. The deployment of drones could increase the risk of accidents and unintended clashes in this context. When one state deploys UAVs, the other
side may not clearly understand whether the drones are intended for offensive or defensive purposes.101 This uncertainty may cause a state to adopt worst-case thinking, potentially leading
to a forceful response. The likelihood of using force increases insofar as a pilot knows that his or her actions would not result in another individual being killed. China, for example, is reported
to have a policy of shooting down unannounced drones with surface-to-air missiles or fighter aircraft.102 Compounding matters further, the rules of engagement for responding to drone
incursions—whether and when to shoot down a drone that transgresses a state’s borders—are currently ambiguous. This ambiguity could lead to mutual misunderstandings and further
escalation of a crisis. Consider, for example, the numerous incidents involving the U.S. and Chinese militaries in the last couple of decades that have spilled into the public sphere, including the
EP-3 incident in 2001, the confrontation between a Chinese naval frigate and the USNS Impeccable in 2013, and the reported near miss between a U.S. surveillance plane and a Chinese fighter
jet in 2014.103 The spate of Russian air incursions into NATO airspace in the Baltic Sea region likewise underscores the potential for diplomatic incidents resulting from military deployments.
During 2014, Russia conducted more than 400 patrols in the region, which corresponded with deteriorating relations with the West.104 With the addition of long-range drones, the number of
incursions into NATO airspace could significantly escalate as the costs of incursion decrease for Russia. The potentially destabilizing consequences could be more intense because of the unclear
rules of engagement that attend the use of armed drones.105 The concerns outlined above certainly have merit. Still, it is important not to overstate the risk of drone deployments for regional
or international stability. For example, none of the aforementioned incidents led to armed military engagement. On the contrary, emerging norms regarding the consequences of shooting
down a drone, though clearly still in the early stages, suggest that states distinguish between the shooting down of manned and unmanned systems. Thus, even if there is an accident and a
drone is brought down, it is less likely to trigger a crisis or military escalation than those in the pessimistic camp imply. For example, when Pakistan shot down an Indian surveillance drone in
the Kashmir region in the summer of 2015 that it said strayed beyond the line of control, India did not escalate the long-simmering conflict to war.106 Similarly, compare the muted
international discussion when Turkey shot down a drone flying on its border with Syria in the fall of 2015 with the diplomatic crisis between Turkey and Russia that erupted when Turkey
brought down a manned SU-24.107 Countries appear to know that opponents will value drones differently from manned aircraft, and behave accordingly. Thus, drones carrying out
surveillance and reconnaissance missions need not be destabilizing. This may not always be the case, however, because the rules of engagement in this context are not yet clearly defined.

There are also reasons to think that using drones for surveillance could be stabilizing. Drones could give both
sides in a dispute real-time information about the situation at lower cost, and with lower risk to
personnel, than is possible at present. Countries can use drones deployed near or at their borders to
surveil more persistently over contested areas or even over their adversaries’ territory. Improved
surveillance from persistent drone deployments could reduce the risk of conflict for two reasons. First, information
provided by drones could reassure a state that its enemy is not planning to launch an attack, thus
lowering the risk of destabilizing countermeasures. Second, the existence of surveillance drones could
decrease the ability of potential aggressors to conduct surprise attacks or covert activities. With the aid
of surveillance drones, potential targets can take appropriate preparations if they observe military
deployments. Drones, then, may be useful for deterrence by denial:108 if the potential aggressor believes
that the element of surprise is critical to operational success, and that drones flying near the border would
give the other state adequate notice, it may be less likely to launch an attack. Both of these mechanisms
could reinforce stability, even when their relative impact is small.
2NC
 T
First is limits---their interp blows the lid off the topic---military detention is explicitly
civil which means their interp justifies any affirmative that reforms civil law penalties,
immigration detention, disease quarantines, or any aspect of the military justice
system---each of those could be their own topic. That makes neg prep impossible on
an already aff-biased topic.
Diane Webber 12, Solicitor of the Senior Courts of England and Wales; LL.B. (Hons.), University of
London, 2012, “Preventive Detention in the Law of Armed Conflict: Throwing Away the Key?,”
https://jnslp.com/wp-content/uploads/2012/08/06__Webber_Master-0629.pdf

Preventive detention (also referred to as preventative, security, or administrative detention) is not a new phenomenon. It has
existed in several forms in the United States for years in several contexts. These include wartime detention
powers to detain lawful and unlawful combatants , pre-trial detention in criminal trials, detention pursuant to material witness
laws, immigration law detention of aliens awaiting deportation, the detention of the seriously mentally ill
and convicted sex offenders when they pose a danger to themselves or the general public, and the quarantine of people
with communicable diseases.3 This article discusses preventive detention as a tool to prevent terrorist attacks.
B. The Framework Problem

Much debate has focused on the appropriate legal framework for preventive detention.4 Should terrorists be
treated as criminals, involving traditional criminal law methods of detection, interrogation, arrest, and
trial? By contrast, should suspected terrorists be treated as though they were involved in an armed conflict, which would
involve detention and trial according to a completely different set of rules and procedures? How should
those two models be balanced?

a) Section 1021 of the NDAA authorizes non-criminal detention

Charles Stimson 15, Senior Legal Fellow & Manager, National Security Law Program, Heritage
Foundation, 3/23/15, “Testimony: Statutory, Policy, and Constitutional Defects of HB15-1114,”
https://www.heritage.org/article/testimony-statutory-policy-and-constitutional-defects-hb15-1114

This bill, if enacted, would prohibit a state agency or employee thereof, when acting in his official capacity, from
assisting in the “indefinite military detention of any United States citizen pursuant to sections 1021 or 1022
of the 2012 NDAA.” This prohibition applies “once the federal government has made an official determination
that a United States citizen shall be held in indefinite military detention under section 1021 or 1022.” But how is the state employee to know
when or if the federal government has made an official determination that the citizen al-Qaeda terrorist will be held in military detention?

The federal government likely won’t make an official determination to subject

the terrorist to non-criminal detention until
after they capture the person, but one can imagine certain circumstances where federal
officials, prior to capture, will decide to
lawfully interrogate a terrorist for intelligence purposes (not criminal law enforcement) once captured. The
Administration might utilize the High Value Interrogation Group—the HIG—to conduct such an interrogation.

b) Same for the AUMF

Nathaniel H. Nesbitt 10, J.D. Candidate, University of Minnesota Law School, 2010, “Meeting
Boumediene's Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsolescence of
New Detention Legislation,” https://scholarship.law.umn.edu/cgi/viewcontent.cgi?
article=1432&context=mlr
In January 2009, less than an hour after President Obama’s inauguration, the government requested a stay of the pending detainee proceedings
to “reassess its position on the scope of the President’s authority to detain the petitioners as so-called ‘enemy combatants.’”68 Following this
reassessment, the Obama Administration dropped the term “enemy combatant” and now presses a more limited position as to the scope of its
detention authority under the AUMF, arguing that it has the authority to detain “persons who were part of,
or substantially supported” the Taliban or al Qaeda.69 After a comprehensive review of all 196 detainees then held at
Guantánamo, the Obama Administration concluded that approximately thirty-five should be tried in federal or military courts, 110 should be
released, and nearly fifty must be detained indefinitely without trial.70 While the habeas litigation may be most pressing for the latter group,
the courts have likely adjudicated only about one-third to one-half of all pending cases.71 In short, notwithstanding Boumediene’s call for
urgency, the habeas litigation will continue for years to come.
The implications of the Guantánamo litigation, moreover, extend well beyond the approximately 175 remaining detainees72: the national
debate about Guantánamo often servesas a proxy for the larger debate about “administrative,”73
“preventive,” 74 or “non-criminal”75 detention in the “war on terror.”76 Some argue, for example, that the United
States should adopt a more formalized system of detention, in which some combination of federal judges and military personnel would preside
over detention decisions in the first instance.77 The current system of habeas review is, in many respects, strikingly similar to some such
proposals. In effect, Hamdi and Boumediene have already created a system of noncriminal detention.78 The rulings analyzed in Part II,
therefore, affect not just the remaining Guantánamo detainees, but all future noncitizen detainees to whom the courts extend habeas rights.79
The habeas litigation is thus intimately bound up with broader detention policy.80 It is also sure to affect military decisionmaking outside of the
detention context.81 The following Part analyzes the district court litigation, highlighting early cleavages among judges on a number of
substantive and procedural issues. It then shows how the D.C. Circuit has resolved these divisions and developed an increasingly coherent body
of jurisprudence that militates against new detention legislation.

a) Military detention is entirely distinct from criminal punishment

Robert M. Chesney 8, Associate Professor of Law at Wake Forest; and Jack Goldsmith, Professor of
Law at Harvard, 2008, “Terrorism and the Convergence of Criminal and Military Detention Models,”
Stanford Law Review, Vol. 60, No. 4, p. 1079-1133

The traditional models for military and criminal detention have distinct theoretical foundations. Military
detention aims to incapacitate in order to prevent future harm in battle, but it in no way implies
condemnation of those detained.4 Criminal punishment, by contrast, aims to condemn, to punish, to
provide retribution for specific past conduct, and to deter future bad conduct .5 Not surprisingly, the
legal frameworks for detention under each model differs along two dimensions: the criteria defining
those persons who are subject to detention and the procedural safeguards that serve to reduce the risk
of a mistake in determining that a particular person satisfies those criteria. This Part summarizes those
differences.

b) Military detention is based on the individual’s status as an enemy combatant,

whereas criminal prosecution is based on past conduct---they have nothing to do with
each other
Robert M. Chesney 8, Associate Professor of Law at Wake Forest; and Jack Goldsmith, Professor of
Law at Harvard, 2008, “Terrorism and the Convergence of Criminal and Military Detention Models,”
Stanford Law Review, Vol. 60, No. 4, p. 1079-1133

In the American legal tradition, criminal

sanctions typically attach to one's conduct and not one's status or
associations. There have long been limited exceptions to this rule. For example, Continuing Criminal Enterprise (CCE)6 and
Racketeer Influenced and Corrupt Organizations Act (RICO)7 offenses involve a form of associational liability. These statutes criminalize
participation in organizations that conduct illegal activity. But
mere association is not enough for liability to attach in
either case; for both CCE and RICO liability, prosecutors must demonstrate the defendant's commission of certain
predicate criminal acts.8 Criminal conspiracy, by contrast, requires no predicate criminal act. But it does require proof that the
association took the form of an agreement to commit an offense, and hence can be distinguished from broader approaches to associational
liability - at least as traditionally construed.9

An even closer brush with pure membership liability can be found in the Alien Registration Act of 1940 (Smith Act).10 The Act is best known for
its speech-related provisions that were frequently invoked during the Cold War.11 A handful of Cold War prosecutions, however, turned on the
membership ban in section 2(a)(3) of the Act, which made it a felony:

to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of
any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or
assembly of persons, knowing the purposes thereof.

The Supreme Court upheld a prosecution under this provision in 1961 in Scales v. United States ,13 It reasoned that criminal punishment can be
based on status as a group member as long as the government proves that the defendant (i) was an "active" rather than merely "nominal"
member of the group (arguably making Smith Act liability more demanding than conspiracy liability) and (ii) specifically intended to further the
group's unlawful ends.14 Scales thus left open the door to further status-based prosecutions predicated on association, at least subject to a
relatively strict mens rea requirement. Nonetheless, though section 2(a)(3) remains on the books today as the third paragraph of 18 U.S.C. §
2385, it rarely has seen action and remains best understood as an exception to the general rule in which criminal liability hinges on one's
conduct rather than one's associations.

2. Military detention and associational status

The Supreme Court explained in a 2004 opinion upholding the detention of Yaser Hamdi that military
detention until the
cessation of hostilities, without charge or trial, is a "fundamental and accepted . . . incident to war"
designed "to prevent captured individuals from returning to the field of battle and taking up arms once again."15
But who precisely is subject to this rule? The laws of war traditionally emphasize pure associational status as the
primary ground for detention; individual conduct provides only a secondary, alternative predicate.

The plan is not a sentencing reform---they’ve highlighted the Hafetz card to say the
opposite of what it actually says. The entire article is about how military detention
lacks the characteristics of criminal sentencing---here’s a different cutting of their card
that makes this abundantly clear.
Jonathan Hafetz 14, Associate Professor of Law, Seton Hall University School of Law, 2014, “Detention
Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of
Criminal Sentencing,” https://www.uclalawreview.org/pdf/61-2-2.pdf

Sentencing, when not constrained by statutory mandatory minimums (which are unaffected by Booker), provides judges with an
opportunity to mitigate the harsh effects that can result from broad criminal laws.195 Sentencing can thus play an
important role in protecting the noninnocent: those who may fall within a criminal law’s wide scope but who may nevertheless warrant less
severe treatment under a theory of retribution, incapacitation, deterrence, rehabilitation, or some combination of sentencing rationales.

Judicial review of AUMF detention has so far followed a similar pattern: deference to a broad substantive standard defining eligibility for
confinement coupled with the imposition of baseline procedural safeguards to ensure adequate factfinding.196 Subject to habeas
review of its factual assertions, the government can detain individuals indefinitely based on their loosely
defined membership in or provision of unspecified (but more than de minimis) support for al-Qaeda or an associated
group, regardless of whether they committed a hostile act or engaged in any terrorist plot or activity.197 Yet, habeas judges have
failed to address the AUMF’s potentially harsh and unnecessary effects on those who barely meet its detention
threshold. Even though, as one district judge explained, the evidence against a particular Guantánamo detainee was “gossamer thin” and “of a
kind fit only for these unique [habeas] proceedings,” he felt compelled to uphold the petitioner’s indefinite confinement because it appeared
more likely than not that the petitioner was part of an enemy force.198 The
habeas judge, in short, lacked any power to do
what a sentencing judge can: compensate for the law’s broad substantive reach by tailoring the length
of confinement to the particular facts of the case.

This could not be clearer---AUMF detention is not a sentence

Jonathan Hafetz 14, Associate Professor of Law, Seton Hall University School of Law, 2014, “Detention
Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of
Criminal Sentencing,” https://www.uclalawreview.org/pdf/61-2-2.pdf

The assumption is that because AUMF detentions are nonpunitive, sentencing rationales are
inapplicable: Detainees have not committed any crime and are thus not blameworthy in a legal sense.
Notions of culpability, however, permeate the detention of individuals found to have joined or
supported a terrorist group, even if they are never prosecuted.151
 Courts
2. Their ev concedes SCOTUS clarification solves – the current issue is court deference
to political interpretations
We read yellow

Martinez, 6
(Law Prof-Stanford, Brief of Amici Curiae Specialists in the Law of War in Support of Petitioner-Appellant
Ali Saleh Kahlah Al-Marri and Reversal, 11/20, Al Marri v. Wright, WestLaw)

In this case, the

Government seeks to expand military jurisdiction over individuals in the United States far
beyond the boundaries set by the law of war. These boundaries have long been accepted by the armed
forces of the United States and lie at the foundation of training given to military personnel. If the
Government's position is accepted, individuals who would ordinarily be considered civilians under the
law of war would be subject to indefinite military detention without charge or trial based on the
President's determination that they are supporters of groups like al Qaeda .1 Such a policy conflicts with
the foundational distinction in the law of war - that between combatant and civilian. Because many
constitutional protections in wartime are interpreted through the framework of the law of war, the
Government's approach threatens both the law of war and the U.S. constitutional order. The law of
war divides those caught up in armed conflict into two categories: combatants and civilians. Much turns
on this distinction. Combatants are people who are privileged to participate in hostilities. Civilians are
not. Combatants may be intentionally targeted; civilians may only be targeted if- and only while - they
are directly participating in hostilities. Combatants generally have the right to prisoners of war status.
Civilians do not. The law of war recognizes that civilians can pose dangers to military personnel. Indeed,
civilians may be tried and punished for crimes, including the crime of having unlawfully participated in
combat. Mr. Ali Saleh Kahlah al-Marri bears all the hallmarks of someone traditionally treated as a civilian who
may have committed crimes subject to civilian criminal trial and punishment. His actions do not qualify
him as a military combatant who would be subject to being shot on sight or detained as a prisoner of
war. Mr. al-Marri is a lawful resident of the United States. He was arrested on U.S. soil and has at all
times been detained here where civilian courts are open and operating. There is no allegation that he is a member of
the armed forces of a nation at war with the United States. There is no allegation that he has been on a foreign battlefield where such troops
are engaged in combat with the United States. There is no allegation that he directly participated in hostilities against the United States, or that
he was poised to imminently engage in an armed attack. Instead, the allegations against al-Marri - that he conspired with members of a secret
organization to engage in terrorist acts at some undetermined point in the future - are almost exactly parallel to the charges against the
defendant in one of the most celebrated cases in American law, Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Supreme Court found that
Milligan did not meet the narrow definition of a combatant under the law of war and therefore was constitutionally entitled to a criminal trial.
Like Milligan, al-Marri is not a combatant under the law of war and is entitled by the Fourth, Fifth and Sixth Amendments to a criminal trial
before he may be indefinitely deprived of his liberty. The Government's novel redefinition of the term combatant eviscerates the distinction
between combatants and civilians and erodes the traditional constitutional boundary between military and civilian jurisdiction. The
Government's position should be rejected. ARGUMENT I. AL-MARRI IS NOT A COMBATANT UNDER THE LAW OF WAR. It is not clear what
definition of “combatant” the district court used in this case to reach its conclusion that al-Marri's is an “enemy combatant.”2 The Government
has employed a variety of constructions of “enemy combatant” since 2001, and the Military Commissions Act of 2006 includes a definition of
unprecedentedly broad and vague scope.3 No matter which version of enemy combatant the Government elects to
use in this case, this Court's understanding of the phrase should be guided by longstanding law of war
principles because of three well-established interpretive canons. First, the Supreme Court has
repeatedly underscored that U.S. law should be construed to be consistent with the law of nations . See
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to
violate the law of nations if any other possible construction remains”); F. Hoffman-La Roche Ltd. v. Empagran, 542 U.S.
155, 164 (2004) (relying on the Charming Betsy principle). Second, statutes should be construed to avoid difficult
constitutional questions. Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936). Third, statutes should be construed to
infringe fundamental liberties only to the extent they clearly and unequivocally authorize the
curtailment of such liberties. Greene v. McElroy, 360 U.S. 474, 507-08 (1959). The Supreme Court's precedents indicate that the
decision to treat an individual in the United States as a combatant is a question of constitutional dimension, and they employ an understanding
of the term “combatant” that is congruent with that of the law of war. In light of these precedents and the relevant interpretive canons, this
Court should also employ a definition of the term “enemy combatant” that is consistent with the law of armed conflict. A. The Law of War
Defines the Status, Rights and Duties of Participants in Armed Conflict. The “law of war,”4 also known as the law of armed conflict, is the body
of international law that regulates the methods, targets, and means of waging armed conflict and sets out the protections due to people caught
up in war. See DEP'T. OF THE ARMY, Field Manual 27-10, The Law of Land Warfare, 2-3 (1956) [hereinafter Law of Land Warfare].5 In cases
since September 11, 2001, and indeed throughout American history, the U.S. Supreme Court has repeatedly looked to the Geneva Conventions
and other international sources for relevant guidance on the content of the law of war. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2786 (2006);
Hamdi, 542 U.S. at 520 (relying on “the law of war” and citing Geneva and Hague Conventions); Ex parte Quirin, 317 U.S. 1, 27-28 (1942) (the
Court has “recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as of enemy individuals”); The Prize Cases, 67 U.S. (2 Black) 635, 667 (1863); Talbot v.
Seaman, 5 U.S. (1 Cranch) 1, 28 (1801).6 The law of war does not govern a state's initial decision to use military force. Once armed conflict has
begun, however, the law of war provides a set of rules that, in their broadest form, prohibit the deliberate targeting of those not directly
participating in hostilities and limit the violence and destructiveness of the tactics employed to that level necessary to achieve the war aims of
the parties to the conflict. See Marco Sassòli & Antoine A. Bouvier, How Does Law Protect in War? 67-68 (Int'l Comm. of the Red Cross 1999);
Law of Land Warfare 3. The law of war derives from two sources: treaties and customary international law. See Law of Land Warfare 4. Much
of the law of war is now contained in treaties. For example, the four 1949 Geneva Conventions [hereinafter the Geneva Conventions] that
govern the treatment of wounded and sick soldiers (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31), sailors (Convention for the Amelioration of the Condition of the Wounded,
Sick, and Shipwrecked Members, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85), prisoners of war (Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]), and civilians (Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6. U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention]) in
international armed conflicts are treaties that 194 nations have ratified, including Afghanistan, Iraq, and the United States.7 Another important
series of treaties, dating from 1899, has been adopted that addresses the means and methods of warfare. These are sometimes referred to
collectively as the “Hague Conventions” or “Hague law.” They codify the principle that military organizations must practice “discrimination” or
“distinction,” i.e. may lawfully attack only targets of military value.8 In addition to treaties, the law of war is also found in customary
international law. See Law of Land Warfare 6. Customary international law consists of rules derived from the actual practice of nations
developed gradually over time that are followed from a sense of legal obligation. See The Paquete Habana, 175 U.S. 677, 711 (1900). Once a
rule of customary international law emerges, it binds all nations, except those states that have specifically and repeatedly objected to the rule.
Like the common law, customary international law is not consolidated in any single authoritative document, but instead is found in many
sources, such as judicial decisions interpreting international law, statements by government officials, and scholarly books and articles on
international law. See Law of Land Warfare 6. The law of war that derives from treaties and the law of war that forms part of customary law
overlap. Some international treaties setting out the law of war largely represent codifications of pre-existing international customary rules, and
sometimes treaty rules over time take on the status of customary international law. See Int'l & Operational Law Dep't, The Judge Advocate
General's Legal Center & School, U.S. Army (“U.S. ARMY”), Law of War Workshop Deskbook 26 (Brian J. Bill, ed., 2000) [herineafter Law of War
Workshop Deskbook]; Law of Land Warfare 6. For example, although the United States has not ratified the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 16 I.L.M. 1391
[hereinafter Additional Protocol I] or the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-international Armed Conflicts, June 8, 1977, 16 I.L.M. 1442 [hereinafter Additional Protocol II] (which provide further rules for
armed conflicts), it recognizes that most of their provisions now constitute customary international law binding on the United States. Law of
War Workshop Deskbook 29-30; U.S. ARMY, JA 422 Operational Law Handbook 11 (William O'Brien, ed., 2003) [hereinafter Operational Law
Handbook]; U.S. ARMY, Law of War Handbook 23-24 (2004) [hereinafter JAG Handbook].9 For this reason, we refer to Additional Protocols I and
II as setting out the relevant international law rules applicable in this case. Generally speaking, the law of war is divided into an elaborate body
of law regulating international armed conflicts and a somewhat less-developed body of law governing non-international armed conflicts. By
their terms, the bulk of the Geneva Conventions apply only to “international armed conflicts” between two or more of the states that have
ratified those conventions. See Geneva Conventions, Common Article 2.10 For example, the Geneva Conventions clearly applied to the recent
armed conflicts between the United States and Afghanistan and Iraq, because these nations had ratified the Conventions.11 More limited
portions of the law of war, including Common Article 3 of the Geneva Conventions, apply in armed conflict “not of an international character.”
As the Supreme Court held in Hamdan, this phrase “bears its literal meaning,” i.e., armed conflicts not between nation-states. 126 S. Ct. at
2796. The law of war provides a comprehensive framework for the treatment of any individuals caught up in armed conflict. As the
Commentary to the Fourth Geneva Convention notes: Every person in enemy hands must have some status under international law: he is either
a prisoner of war and, as such, covered by the Third Convention, [or] a civilian covered by the Fourth Convention .... There is no intermediate
status; nobody in enemy hands can be outside the law. See ICRC, Commentary to the IV Geneva Convention 51 (Jean S. Pictet, ed., 1958)
[hereinafter Commentary Fourth Geneva Convention].12 The Law of War Handbook issued by the U.S. Army's Judge Advocate General's School
summarizes this critical point. It declares that “[a]nyone not qualifying as a combatant, in the sense that they are entitled to PW [prisoner of
war] status upon capture, should be regarded as a civilian.” JAG Handbook 142. The war on terrorism does not consist of a single, discrete,
conflict. It is a multi-pronged campaign that combines international armed conflict, non-international armed conflict, and criminal law
enforcement (including prosecutions in civilian court for conspiracy and material support of terrorism). Within those portions of the war on
terrorism that qualify as an armed conflict,13 neither the law applicable in international armed conflicts nor the law applicable in non-
international armed conflicts provides authority for al-Marri's detention as an “enemy combatant.” B. The Law of War Should Guide This Court's
Interpretation of the Term “Combatant.” As the Supreme Court described in Hamdan, the law
of war assumes that a nation's
justice system operates even during the exigencies of wartime. 126 S.Ct. at 2769. The U.S. Constitution
independently protects our civilian justice system during times of crisis. At all times, the constitutional
system of the United States is premised on the supremacy of civilian government, and military
jurisdiction is exceptional and limited. See Milligan, 71 U.S. at 120-21 (“The Constitution of the United States is a law for rulers
and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all
circumstances.”); Reid v. Covert, 354 U.S. 1, 30 (1957) (the Constitution makes the military “subordinate to civil authority” because of “fear and
mistrust of military power”). The U.S. Supreme Court has repeatedly looked to the law of war to determine the constitutional boundaries of
military jurisdiction. See Quirin, 317 U.S. at 27-28. The Court has allowed the exercise of military jurisdiction over individuals traditionally
subject to the law of war. See id. at 46 (“We hold only that those particular acts constitute an offense against the law of war which the
Constitution authorizes to be tried by military commission”). But it has held unconstitutional the substitution of military for civilian authority
over individuals who fall outside the boundaries of the law of war. See Milligan 71 U.S. at 131 (holding that Milligan was “not engaged in legal
acts of hostility” and therefore was not subject to military jurisdiction). The Supreme Court has also looked to the law of war to inform the
meaning of disputed statutory provisions related to armed conflict, such as the Authorization for Use of Military Force, Hamdi, 542 U.S. at 520-
21, and Article 21 of the Uniform Code of Military Justice, Hamdan, 126 S. Ct. at 2786. Recourse to the law of war is equally appropriate in this
case. C. The
Government's broad redefinition of the term “enemy combatant” would erode the most
fundamental distinction in the law of war. The principle of distinction, which requires distinguishing
between combatants and civilians, is one of the most fundamental principles of the law of war. As the
official commentary to the additional protocols of the Geneva Convention observes “the principle of
protection and distinction forms the basis of the entire regulation of war .” ICRC, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 at 586 (Yves Sandoz et al, eds., Tony Langham et al, trans. 1987)
[hereinafter Commentary to Protocols]; The Handbook of Humanitarian Law in Armed Conflicts 65 (Dieter Fleck, ed. 1995); Quirin, 317 U.S. at
30-31 (noting that “[b]y universal agreement and practice,” the law of war draws a distinction between “the armed forces” and civilian
populations); Instructions for the Government of Armies of the United States in the Field (Lieber Code), art. 22. The concept of combatant
determines who can be the lawful target of military attack. Combatants can be intentionally shot, bombed, or otherwise targeted with lethal
force. See Additional Protocol I art. 48; Additional Protocol II art. 52(2). Civilians, on the other hand, are protected from being the intentional
targets of armed attack, as long as they do not participate directly in hostilities. See Additional Protocol I art. 51(2); Additional Protocol II art.
13(2). “The principle of distinction is sometimes referred to as the ‘grandfather of all principles,’ as it forms the foundation for much of the
Geneva tradition of the law of war. The essence of the principle is that military attacks should be directed at combatants and military targets,
and not civilians or civilian property.” JAG Handbook 166. Unless they have been disarmed or are trying to surrender, combatants may be
attacked with lethal force wherever they are found.14 The law of war does not require that a combatant first be warned of the attack and
offered the chance to surrender. See Additional Protocol I art. 57(2)(c) (advance warning only required for attacks that may affect the civilian
population). Thus, if al-Marri, and all other persons similarly alleged to have conspired with al Qaeda, truly were “combatants,” the law of war
would not only allow them to be held until the end of active hostilities, but would allow them to be shot upon discovery, at any point, anywhere
in the world - including in their homes in Peoria, Illinois.15 Military officers, statesmen, judges, and scholars have long recognized that any
blurring between the categories of combatant and non-combatant could lead to a severe breakdown in limits upon whom military forces may
legitimately target. See Geoffrey Best, War and Law Since 1945 at 254-66 (1994). In many wars, virtually every member of a society - from
farmers and factory workers to government bureaucrats - may provide direct or indirect support to the nation's military. Any designation as
combatants of people who provide indirect support to a party engaged in armed conflict but who do not directly participate in hostilities would
threaten to legitimize the targeting of huge swaths of nations' civilian populations, as in fact occurred during World War II. See Kenneth Watkin,
Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy, Occasional Paper, Harvard Program on
Humanitarian Policy and Conflict Research, 8-11 (Winter 2005). Moreover, maintaining a clear legal separation between combatants and non-
combatants reinforces a clear separation of military and civilian functions and control. “Th[e] supremacy of the civil over the military is one of
our great heritages. It has made possible the attainment of a high degree of liberty regulated by law rather than by caprice. Our duty is to give
effect to that heritage at all times ....” Duncan v. Kahanamoku, 327 U.S. 304, 325 (1946) (Murphy, J., concurring). Expanding the definition of
“combatant” of necessity increases the scope of military authority over civil society. Nations who adopt sweepingly overbroad definitions of
“combatant,” such as the one proffered by the Government in this case, run the risk of thrusting upon the military the roles of judge and jailer
to a degree far exceeding that required by military necessity. Indeed, one of the most chilling aspects of the attacks of September 11, 2001 was
the attackers' intentional targeting of civilians, a fundamental violation of the law of war. Some terrorist rhetoric refuses to acknowledge the
distinction between civilians and combatants - labeling all U.S. and Israeli citizens, for example, the “enemy.” This verbal sleight of hand, of
course, renders the law of war useless, because it justifies the killing of any individual. It is precisely to protect against such abuses that the law
of war defines “combatants” narrowly. 1. Under the Law of War, Al-Marri is Not a “Combatant.” The Geneva Conventions, and especially
Additional Protocol I, prescribe with considerable detail the rights and duties of people caught up in an armed conflict.16 Additional Protocol I
states that “combatants,” who are “members of the armed forces of a Party to a conflict,” art. 43(2), are lawful military targets, while non-
combatants are not.17 This definition deliberately limits the class of people who lawfully may be targeted by opposing military forces. People
who are actually in the armed forces of a nation-state are deemed combatants and are generally lawful targets at all times; people who are not
in the armed forces are generally not combatants and are generally not lawful targets. Because the law of war provides a comprehensive
scheme for people caught up in warfare, there is no intermediate status. Individuals must be classified either as combatants or civilians.18 The
law of war recognizes that civilians may cause harm in armed conflict. They may be treated as lawful targets of attack and, inferentially, as
combatants but only “for such time as they take a direct part in hostilities.”19 The law of war standard, therefore, for when individuals who are
not ordinarily defined as combatants may be treated as combatants is when they take a “direct part” in “hostilities.” This standard contains
three relevant criteria. First, it applies only to “hostilities.” This term carries a narrower connotation than the phrase “armed conflict,” which
appears frequently elsewhere in the Geneva Conventions.20 Thus, an individual who would not ordinarily be considered a combatant must
participate in actual “hostilities” - rather than the relevant armed conflict more generally - to lose his protection as a civilian. The standard also
has a clear temporal dimension. It lasts only “for such time” as the individual takes a direct part in hostilities. A civilian who takes part in
hostilities regains his civilian status after his direct participation has ceased (although he may be criminally prosecuted for his illegal actions).
Finally, the test sets up a demanding nexus. The individual must take a “direct” part. While this phrase is not further defined, it clearly suggests
that indirect aid - no matter how valuable - does not suffice. A civilian does not become a combatant because the opposing commander
suspects he might, at some point in the future, plot to engage in violent acts.21 If the rule were otherwise, large parts of the civilian population
of a country at war would become lawful targets for attack. Shooting a gun on a battlefield constitutes taking a “direct part in hostilities.” So,
too, would hijacking an airplane with the intent to use it as missile. Driving a truck full of explosives or carrying a gun towards the battlefield
with the imminent intent to engage in combat could also amount to taking a direct part in hostilities. By contrast, supporting the enemy cause
off the battlefield, conspiring with the enemy, contemplating taking part in battle in the future, and sympathizing with the enemy do not
constitute taking a direct part in hostilities under the law of war, although those acts may be punishable under domestic criminal law.22 A
civilian who participates directly in hostilities would be violating the law of war, and in the Government's nomenclature would be labeled an
“illegal combatant.”23 ”Illegal combatant” or “unlawful combatant” is not a term that appears in any treaty on the law of war. Commentators
have occasionally used these phrases to describe someone who does not receive the privileges accorded to combatants, the most important of
which are prisoner of war status and immunity from prosecution for merely engaging in combat. The phrase “unlawful combatants” actually
encompasses two sets of people: members of the regular armed forces who do not wear uniforms and do not bear arms openly (and thereby
lose their privileged combatant status) and civilians who unlawfully participate directly in battle (who never had privileged combatant status to
begin with). As persons in the latter category retain their civilian status, it is arguably improper to refer to them as combatants at all under the
law of war: they are more accurately described as “unprivileged belligerents.” See George H. Aldrich, The Taliban, Al Qaeda, and the
Determination of Illegal Combatants, 96 AM. J. INT'L L. 891, 893 (2002). The Quirin Court's use of the phrase “illegal combatants,” rather than
the categories and terminology of the Geneva Conventions, reflects the fact that Quirin predates the 1949 Conventions. Its analysis of the law
of war must therefore be read in conjunction with the subsequent, authoritative Geneva Conventions. Members of the Taliban armed forces
would properly be considered combatants in the conflict in Afghanistan. Similarly, members of groups associated with the Taliban, such as al
Qaeda, who fought on the battlefield in Afghanistan and who served under a command responsible to Taliban officials could also be classified
as combatants in that conflict. In addition, any other individuals who fought on the battlefield could be treated as combatants during their
actual participation in the fighting. Because al-Marri is neither alleged to be a member of a regular armed force of a nation state nor to have
participated directly in hostilities, he cannot be categorized as a combatant - lawful or unlawful. The Government does not claim that al-Marri
participated directly in hostilities in Afghanistan or Iraq. Nor is there any allegation that al-Marri is a member of any “organized armed forces,
groups and units which are under a command responsible to [the Taliban Government or the Government of Iraq] for the conduct or its
subordinates”24 or is a member of any other armed force.25 2. The Supreme Court's Cases Have Rested Upon a Narrow Definition of
“Combatant” That is Consistent with the Law of War. In previous decisions, the Supreme Court has hewed closely to the traditional definition of
“combatant” under the law of war. Yasser Hamdi, for example, was participating directly in hostilities at the time of his capture. Northern
Alliance forces were “engaged in battle” with the Taliban when Hamdi's Taliban unit surrendered. Hamdi himself was allegedly carrying a
Kalashnikov assault rifle at the time of his surrender. In its decision, the Court repeatedly emphasized Hamdi's direct participation in hostilities
on a foreign battlefield. See 542 U.S. at 522 n.1 (“the basis asserted for detention by the military is that Hamdi was carrying a weapon against
American troops on a foreign battlefield”); id. at 516 (decision addresses only the “narrow question” of whether the Government had authority
to detain as “enemy combatants” individuals who were “ ‘ “part of or supporting forces hostile to the United States or coalition partners' ” in
Afghanistan and who “ ‘engaged in an armed conflict against the United States' ” there.”). In addition to participating directly in hostilities at the
time of his capture, Hamdi was also specifically alleged to have been affiliated with a Taliban Government militia unit, id. at 513, and therefore
was a part of the “organized armed forces, groups and units which are under a command responsible to Party for the conduct of its
subordinates.” Additional Protocol I, art. 43(2). This was likewise the case with the defendants in Quirin, who wore the uniforms of the German
Marine Infantry when they came ashore in the United States from German military submarines. 317 U.S. at 21. As the Supreme Court
explained, they had the “status of an enemy belligerent” when they entered the United States. Id. at 38. By contrast, the Supreme Court found
that the prisoner in Milligan was not a combatant. Milligan was accused of “joining and aiding” a “secret society” for the “purpose of
overthrowing the Government,” “holding communication with the enemy,” “conspiring to seize munitions of war stored in the arsenals”, and
“to liberate prisoners of war” in Indiana at a time when it “was constantly threatened to be invaded by the enemy.” 71 U.S. at 6-7.
Nevertheless, Milligan was entitled to a civilian criminal trial. As the Court explained: If in Indiana he conspired with bad men to assist the
enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not
engaged in legal acts of hostility against the Government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the
immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties? Id. at 131. As the Court
emphasized in Hamdi, the key distinction was Milligan's lack of direct participation in hostilities: “Had Milligan been captured while he was
assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have
been different.” 542 U.S. at 522. In short, as the Court indicated in Hamdi, it has only upheld the detention of enemy combatants when “based
on longstanding law-of-war principles.” The Court has warned that “[i]f the practical circumstances of a given conflict are entirely unlike those
of the conflicts that informed the development of the law of war, that understanding may unravel.” Id. at 521. The Government's attempted
extension of the term combatant in this case far beyond traditional law-of-war principles is the kind of unraveling the Court presaged. D. The
Government's Broad Redefinition of the Term “Enemy Combatant” Would Erode Fundamental Liberties. The
Government's broad
redefinition of the term “enemy combatant” would erode fundamental liberties by extending the law of
war far beyond its traditional domain. The law of war allows the Government extraordinary powers to
deprive individuals of life, liberty and property with relatively minimal process. These extraordinary
powers are justified both by battlefield exigency and by their relatively limited temporal and geographic
scope. If the Government's position in this case is accepted, it would extend those extraordinary powers
without any of the traditional limits. The Government's own statements in litigation reveal the breadth of its redefinition of the
term “enemy combatant.” As the U.S. District Court for the District of Columbia explained: This Court explored the Government's position on
the matter by posing a series of hypothetical questions to counsel at the December 1, 2004 hearing on the motion to dismiss. In response to the
hypotheticals, counsel for [the Government] argued that the Executive has the authority to detain the following individuals until the conclusion
of the war on terrorism: “[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but
[what] really is a front to finance al-Qaeda activities,” a person who teaches English to the son of an al Qaeda member, and a journalist who
knows the location of Osama Bin Laden but refuses to disclose it to protect her source. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
475 (D.D.C. 2005) (internal citations omitted). That court also noted that the Government claims the power of “indefinite detention of
individuals who never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies.” Id. The
consequences of designation as an “enemy combatant” and resulting extreme deprivation of due process rights diverge considerably from
those imposed under criminal statutes under which the accused has a right to a full jury trial. See, e.g., 18 U.S.C. §§ 2339-2339D. The breadth of
the definition of enemy combatant is thus particularly troubling in light of the minimal process that individuals so classified are likely to receive
before being indefinitely deprived of their liberty - or even their lives. For that reason, and to avoid the profound constitutional questions that
would be created by such an extension, this court should reject the Government's novel redefinition of the term enemy combatant and should
instead interpret the phrase “enemy combatant” in accordance with the traditional law of war definition. CONCLUSION The District Court's
decision in this case did not squarely address either the definition of combatant or why al-Marri falls within this category. This omission belies
the centrality of the concept of combatancy both to this case and to the law of war more generally. If this court determines that Mr. al-Marri is,
indeed, a combatant then several conclusions inexorably follow. First, al-Marri and any other individuals associated with al Qaeda may lawfully,
under the law of war, be killed instead of captured without a shred of legal process. Second, this
court will have embraced a
definition of combatancy that is considerably broader than that countenanced by the law of armed
conflict. In so doing, it will not only weaken our domestic protections but will also do considerable
violence to an important body of law that protects soldiers, civilians, and all those caught up in the
scourge of war.

Constitutional rules solve, no procedural tinkering justified.

Waxman et al. 7-- Seth Waxman, Counsel on Record, Solicitor General of the United States from
1997 through January 2001. Joined by dozens of lawyers, many of which were law professors. [Supreme
Court of the United States Lakhdar Boumediene, et al., Petitioners, v. George W. Bush, et al.,
Respondents, On Writ of Certiorari to the United States Court of Appeals for the District of Columbia
Circuit, Brief for The Boumediene Petitioners, No. 06-1195,
https://www.law.umich.edu/currentstudents/writingbettersentences/Documents/Faculty Briefs--Julian
Mortenson.pdf]

B. Petitioners’ Imprisonment Violates Due Process

Habeas relief is independently warranted because Petitioners’ detention violates the Fifth Amendment. Petitioners’ presence in
a territory subject to the federal government’s exclusive jurisdiction and control entitles them to the fundamental protections of the Due
Process Clause. Due process requires, at a minimum, that their lengthy confinement be pursuant to fair procedures, including meaningful notice
of the basis of detention and opportunity to be heard, representation by counsel, and a neutral decisionmaker. Although the Hamdi plurality
suggested a procedural framework that might have satisfied due process had it been implemented in 2004, the government’s CSRT process fell
far short of even that approach. After nearly six years of unjustified imprisonment, the government’s failure to comply with
rudimentary due process deserves no further indulgence.

1. Petitioners possess fundamental due process rights under the Fifth Amendment
The district court summarily dismissed Petitioners’ constitutional claims because it believed, based on Eisentrager, that Petitioners could not
assert Fifth Amendment due process rights at all. Pet. App. 66a-67a.

Rasul determined that Eisentrager’s constitutional analysis does not apply to prisoners held indefinitely at Guantanamo. See supra Part I.A.2.
The Court specifically envisioned that the district court would hold a hearing on Petitioners’ due process challenges. See 542 U.S. at 483 n.15,
485 (stating that petitioners’ allegations “unquestionably describe” violations of the Constitution, laws or treaties of the United States and
remanding for the district court to consider “in the first instance the merits of petitioners’ claims”). The district court’s suggestion that Rasul
was an empty gesture—recognizing only the “ability to file an application” that would be summarily dismissed under Eisentrager (Pet. App. 67a
n.15)—is simply incorrect.

Petitioners’ due process rights are further confirmed by Rasul’s reference to the “cases cited” in Justice Kennedy’s concurrence in United States
v. Verdugo-Urquidez, 494 U.S. 259, 277-278 (1990). Rasul, 542 U.S. at 484 n.15. Chief among those cases were the Insular Cases, in which the
Court rejected the broad argument (accepted by the district court and advanced by the government here) that aliens located in a “territory
over which Congress has jurisdiction which is not a part of the ‘United States’” cannot assert any fundamental Fifth Amendment rights. Downes
v. Bidwell, 182 U.S. 244, 277 (1901). The Court noted that “certain natural rights enforced in the Constitution” would apply to aliens in such
locations, including the right “to be protected in life, liberty, and property.” Id. at 282-283; see also Balzac v. Porto Rico, 258 U.S. 298, 312-313
(1922) (noting that the “guaranties of certain fundamental personal rights declared in the Constitution,” including “that no person could be
deprived of life, liberty, or property without due process of law,” applied in Puerto Rico, which merely “belonged” to the United States).

Justice Harlan’s separate opinion in Reid v. Covert (also cited in Justice Kennedy’s Verdugo-Urquidez concurrence) noted that the Insular Cases
“stand for an important proposition,” which is “of course, not that the Constitution ‘does not apply’ overseas, but that there are provisions in
the Constitution which do not necessarily apply in all circumstances in every foreign place.” 354 U.S. 1, 74 (1957) (Harlan, J., concurring in the
result). The recognition of constitutional guarantees in other territories depends on “the particular circumstances, the practical necessities, and
the possible alternatives which Congress had before it.” Id. at 75.46

Footnote 46 begins:

46 Courts have accordingly held that aliens beyond the geographic boundaries of the United States may invoke
specific constitutional rights. See, e.g., Juda v. United States, 6 Cl. Ct. 441, 455-458 (1984) (Marshall Islands); Ralpho v.
Bell, 569 F.2d 607, 618-619 (D.C. Cir. 1977) (Trust Territory of Micronesia); Government of the C.Z. v. Yanez P. (Pinto), 590 F.2d 1344, 1351
(5th Cir. 1979) (Canal Zone); Government of the C.Z. v. Scott, 502 F.2d 566, 568 (5th Cir. 1974) (“[I]t is the territorial nature of the Canal Zone
and not the citizenship of the defendant that is dispositive.”); United States v. Husband R. (Roach), 453 F.2d 1054, 1058 (5th Cir. 1971)
(same).

Footnote 46 ends and the article continues:

Although Verdugo-Urquidez read Eisentrager as “reject[ing] the claim that aliens are entitled to Fifth Amendment rights outside the sovereign
territory of the United States” (494 U.S. at 269), that statement was dictum, since Verdugo-Urquidez did not involve a Fifth Amendment claim,
but rather a Fourth Amendment claim that the DEA should have obtained a search warrant prior to conducting a search in Mexico with the
cooperation and permission of the Mexican authorities (id. at 262). Accordingly, the discussion in Verdugo-Urquidez cannot expand the holding
or the reasoning of Eisentrager, which—as this Court recognized in Rasul—does not dispose of Petitioners’ constitutional claims.47

Justice Kennedy’s Verdugo-Urquidez concurrence—widely and correctly viewed as the controlling opinion regarding the extraterritorial
application of constitutional rights48— rested not on a theory that the Constitution could never apply extraterritorially, but rather on the fact
that it would be “‘impracticable and anomalous’” to apply the Fourth Amendment to searches in Mexico. 494 U.S. at 278 (citation omitted). As
the Court in Rasul implicitly accepted, there is nothing “impracticable” or “anomalous” about insisting that the United States comply with the
Fifth Amendment when it deliberately transports foreign citizens to, and incarcerates them indefinitely in, a territory where it exercises
complete jurisdiction and control.49

2. Petitioners’ indefinite detention without a fair hearing violates the Fifth Amendment

Due process requires that a serious deprivation of liberty—which potentially life-long military detention clearly is—be
based on fair procedures that afford meaningful notice of the basis for detention and “a fair opportunity to rebut the Government’s
factual assertions before a neutral decisionmaker.” Hamdi, 542 U.S. at 533 (plurality opinion); see also Panetti v. Quarterman, 127 S. Ct. 2842,
2856 (2007) (due process requires opportunity “to submit ‘evidence and argument from the prisoner’s counsel’” (quoting Ford v. Wainwright,
477 U.S. 399, 427 (1986) (Powell, J., concurring in part and concurring in the judgment))). Moreover, “the right to notice and an opportunity to
be heard must be granted at a meaningful time and in a meaningful manner.” Hamdi, 542 U.S. at 533 (plurality opinion) (quoting Fuentes v.
Shevin, 407 U.S. 67, 80 (1972) (internal quotation marks omitted)). TheDue Process Clause is particularly exacting where,
as here, potentially lifelong confinement is contemplated without the protections that precede a criminal
conviction. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 93 (1992) (Kennedy, J., dissenting) (“We have often subjected to heightened due
process scrutiny, with regard to both purpose and duration, deprivations of physical liberty imposed before a [criminal] judgment is
rendered[.]”).50

As we have demonstrated (supra Part I.B.2), the government has failed to provide Petitioners with any hearing remotely approaching the basic
due process requirements of meaningful notice and opportunity to be heard. The government’s treatment of Petitioners is particularly
unjustifiable given that, over three years ago, the Hamdi plurality described adversarial procedures for challenges to Executive detention of
“enemy combatants” that might have complied with due process at that time. 542 U.S. at 538-539. The government did not follow this
guidance. Instead, it promulgated rules that allowed it to avoid meaningful explication of the charges, prevented Petitioners from seeing most
of the evidence used against them, forbade them from consulting counsel, and made it virtually impossible for them to identify and proffer
favorable evidence. Those procedures are structurally flawed, and review under the DTA cannot cure them at this very late date.
See supra Part I.A.2.51

The Court need not decide whether different procedures, if offered “‘at a meaningful time and in a meaningful manner’” (Fuentes, 407 U.S. at
80 (citation omitted)), might satisfy due process in some future case. With Petitioners’ unconstitutional imprisonment now approaching six
years, no
further procedural tinkering is justifiable. “It is not the habeas court’s function to make illegal
detention legal by supplying a process that the Government could have provided, but chose not to.”
Hamdi, 542 U.S. at 576 (Scalia, J., dissenting).

A comparison to the treatment of detainees in Israel—a democracy well acquainted with terrorist threats—demonstrates how far the
government has strayed from the rule of law in this case. Israel requires that executive detention be reviewed by a judge within 48 hours and
again every three months. Schulhofer, Checks and Balances in Wartime: American, British and Israeli Experiences, 102 Mich. L. Rev. 1906, 1920-
1921 (2004). In the occupied territories, judicial review is required after eight days, and Israel’s Supreme Court rejected a military effort to
extend it to eighteen days; further reviews are required every six months. See id. at 1921-1922, 1927-1928 (discussing Marab v. IDF
Commander in the West Bank, H.C. 3239/02, 57(2) P.D. 349 (Isr. S. Ct. 2003)). Even individuals held as “unlawful combatants” under a 2002
statute are entitled to judicial review after fourteen days of detention. See Incarceration of Unlawful Combatants Law, 5762-2002, § 5(a) (Isr.).
Procedures on review in all cases include: (1) an independent judge; (2) representation by counsel; (3) a searching examination of the evidence;
(4) the right to offer rebuttal evidence; (5) a court empowered to order release; (6) periodic independent reexamination at least every six
months; and (7) two levels of plenary de novo appellate review. See Br. of Amici Specialists in Israeli Military Law and Constitutional Law. The
United States Government’s claim that national security or other interests make compliance with rudimentary due process
requirements impossible or undesirable is untenable in light of the Israeli example.52

The lack of due process afforded Petitioners “unquestionably” gives rise to detention in violation of the Fifth
Amendment. Rasul, 542 U.S. at 484 n.15. Because Petitioners are being detained “in violation of the
Constitution (because without due process of law),” habeas relief should be granted. Hamdi, 542 U.S. at 576
(Scalia, J., dissenting).

1. Text and function. “Enact” is only legislative.

Ayers 18 - Assistant Professor of Law and Director of the Government Law Center, Albany Law School
(Ava, “Federalism and the Right to Decide Who Decides,” 63 Vill. L. Rev. 567, Lexis)//BB

Is it safe to assume that the phrase “enact a State law” and its variants refer to legislative action, as
opposed to executive, judicial, or administrative actions? Dictionaries confirm that the verb “enact” generally
refers to legislative action, rather than executive, judicial or administrative actions.62 ***start footnote 62*** 62.
For example, the Oxford English Dictionary defines “enact” as “[o]f a legislative authority: To make into an act.” Enact,
Oxford English Dictionary, http:// www.oed.com/view/Entry/61514?rskey=8kxjq3&result=3&isAdvanced=false#eid [Permalink unavailable] (last visited Apr. 10,
2018). ***end footnote 62*** And when Congress wants to allow non-statutory state action, it does so explicitly, by
using language like this: Nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders
or to adopt such policies and enact such laws as they may deem necessary with respect to the appropriation, control, and use of waters within their

borders, except as modified by the Colorado River compact or other interstate agreement.63 When Congress wishes to do so, it is quite
capable of using language that includes non-legislative actions . For example, when the federal Real Estate
Settlement Procedures Act preempts inconsistent “State law,” it takes care to define “law” broadly: “‘Law’ as used in this section includes
regulations and any enactment which has the force and effect of law and is issued by a State or any political subdivision of a State.”64 Another
statute likewise provides that “[n]o State or political subdivision thereof may enact, prescribe, issue,
continue in effect, or enforce any law (including any regulation, standard, or other provision having the force and effect of law)” that
transgresses on the relevant areas.65 Similarly, the Airline Deregulation Act preempts “a law, regulation, or other provision having the force and effect of law” that
applies to the relevant subject matter.66 Another example of congressional tolerance for non-legislative state action is the federal E-Sign Act, under which e-
signatures cannot be denied legal effect in any transaction affecting interstate commerce.67 That Act preempts any “State statute, regulation, or other rule of
law”—note the care to include non-legislative action.68 It then exempts from preemption not only state “enactments,” but any state action that “constitutes an
enactment or adoption of the Uniform Electronic Transactions Act .”69 Even though this statute is anticipating the possibility of states
adopting model statutes, it uses the phrase “enactment or adoption,” taking care to allow for state action other
than legislation. In other words, the law allows states to adopt a model statute through non-legislative means. At times, then, Congress is remarkably
protective of states’ non-legislative lawmaking. Against this backdrop of congressional care in using the word “enactment,” it seems reasonable to assume that
statutes referring to the “enactment” of a state “law” do indeed refer to action by the legislature. The question is an
important one, because (as noted above) there are many such statutes.
 Adv 1
Gridlock is self-reinforcing.
Hale & Held 18 Dr Thomas Hale, Politics PhD from Princeton, Global Politics master’s degree from the
London School of Economics, public policy professor at the University of Oxford, & David Held, a British
political scientist, Politics and International Relations Professor at Durham University until his death.
[Breaking the Cycle of Gridlock, Global Policy, 9(1), Wiley Online Library]//BPS
One of the central concepts developed in Gridlock was ‘self‐reinforcing interdependence’ (Hale et al., 2013), the mutually enabling relationship
between globalization and the institutionalization of world politics that profoundly deepened interdependence over the postwar period. The
idea is that international cooperation is not just a response states use to manage existing interdependence; over time, cooperation also
increases the links between economic and social systems across borders, deepening interdependence further. For example, trade agreements
create incentives for companies to develop global supply chains and invest in technologies that facilitate cross‐border production, changing
their business models and building new constituencies for trade. The resulting increase in interdependence creates additional political
incentives for countries to cooperate further, beginning the cycle again. We argued in Gridlock that this historical process of partially
endogenous interdependence deepened to such a degree over the postwar period that a number of ‘second order’
cooperation problems arose – namely, multipolarity, harder problems, institutional inertia, and
fragmentation – causing gridlock. Today it seems clear that gridlock itself also has a self‐reinforcing element, one
that emerges from the corrosive effect of unmanaged globalization on domestic politics. The rise of
nationalism and populism across the world, in many different kinds of countries, has multiple and complex origins. But this trend can
be seen as part of a downward spiral in which gridlock leads to unmanaged globalization or unmet global
challenges, which in turn help to provoke anti‐global backlashes that further undermine the operative capacity
of global governance institutions (Figure 1). image Figure 1 Open in figure viewerPowerPoint The vicious cycle of self‐reinforcing
gridlock. Consider each dynamic in turn. First, as per the gridlock argument, we face a multilateral system that is less and
less able to manage global challenges, even as growing interdependence increases our need for such management.
Second, in many areas this inability to manage globalization or to meet global challenges has led to real, and in many cases severe,
harm to major sectors of the global population, often creating complex and disruptive knock‐on effects. Perhaps the most
spectacular recent example of harm caused by mismanaged interdependence was the 2008–9 financial crisis. A product of inadequate
regulation in major economies and at the global level, the crisis wrought havoc on the world economy in general, and on many countries in
particular, which was reinforced in many places by severe austerity measures that tried to limit the fallout. We should not be surprised that
such significant impacts have led to further destabilization. Third, what has become clear only several years after the crisis is not just the
economic cost, but the scale of the political destruction to which the crisis contributed. Rising
economic inequality, a long‐term trend
in many economies, has been made more salient by the crisis. It reinforced a stark political cleavage between those who have
benefited from the globalization, digitization, and automation of the economy, and those who feel left behind in the wake of these powerful
disruptions. The global financial crisis was not the only cause of many of the political disruptions that have come to characterize and realign
politics in major countries in the last few years, but it has been a critical contributing factor in several of them, building on the economic
dislocations that globalization had effected over several decades (Colgan and Keohane, 2017). Perhaps most importantly, the financial crisis
sharpened the divide between working‐class voters in industrialized countries, who were hit hard by the events, and other segments of the
population. This division is particularly acute in spatial terms, in the cleavage between global cities and their hinterlands. Global cities like
London, Paris, Shanghai, New York and San Francisco have become nodes of power and influence in the global economy, linked to each other
through a variety of social and economic networks. Their citizens have benefited directly as opportunities have sharply risen. By contrast, those
in the hinterlands, typically rural areas and deindustrialized cities, but not exclusively so, have often been left behind in absolute and relative
terms, building up frustrations and resentments. The effect
on politics has been profound, with a number of nationalist
and populist movements emerging and, in some cases, winning elections (or otherwise seizing power) in many countries.
Again, we should not be surprised that people exposed to the negative effects of globalization will turn against it. Research shows that over the
course of history, right‐wing populist movements and financial crises are strongly correlated (see Funke et al., 2016). Relatedly, the 2008 crisis
exacerbated many of the woes that have beset the eurozone since 2010, such as the repeated bailouts of Greece and other countries, and
consumed European politics, driving voters on both the creditor and debtor side of the political chasm towards Euro‐scepticism. And more
broadly, the impact on the centre‐left parties that have traditionally supported global and regional cooperation has also been severe, with the
differential effects of globalization straining the traditional coalition between metropolitan progressives and the working class. Moreover, the
financial crisis is only one area where gridlock has undercut the management of global challenges and undermined
political support for global cooperation. Consider the global response to terrorism. International cooperation, though effective in
many areas, has failed to prevent extremists from attacking civilians around the world. While relatively cohesive and centralized networks like
Al Qaeda have been largely taken apart through a combination of aggressive policing, surveillance, drone attacks, and other techniques, more
inchoate movements like the Islamic State are much harder to root out. The attacks by these groups, for example in Paris in 2015, have been all
too effective in creating a public discourse in many countries that sees perpetual war between Islamists and the West. This sentiment, in turn,
creates political pressure for militarized responses from the West that can create as many terrorists as they eliminate, as well as anti‐Muslim
policies that breed further resentment. These negative effects also spill across issue areas. The failure to manage terrorism
and to bring to an end the wars in the Middle East has had a particularly destructive impact on the global governance of migration. With
millions of refugees fleeing their countries in search of safety and a better life for their families, many of them heading for Europe, the global
forced migration regime has been overwhelmed. Many recipient countries have seen a potent political backlash from right‐wing national
groups and disgruntled populations, which further reduces the ability of countries to generate effective solutions at the regional and global
level. We see trends toward nationalism and populism across many different kinds of countries, from Trump's United States to
Duterte's Philippines, from Putin's Russia to Brexit Britain, from Modi's India to Erdoğan's Turkey. The anti‐global backlash is heterogeneous and
rife with contradictions. It encompasses terrorism in the name of Islam and Islamophobic discrimination against Muslims. It includes leftist
rejection of trade agreements and right‐wing rejection of environmental agreements. One powerful tie that unites these disparate
movements is a rejection of interdependence and collective efforts to govern it. Global institutions and
(perceived) cosmopolitan elites have always been a potent and politically expedient whipping boy
[scapegoat] for nationalist and populists, even when those institutions, or some other form of international cooperation, are
needed to tame the socioeconomic forces that inflamed populist movements to begin with. This undermining of global
cooperation, whether for migration, terrorism, financial regulation, climate change, or other areas, is
the fourth and final element of self‐reinforcing gridlock. As the global trend to nationalism and populism
undermines the effectiveness of global institutions even further, the whole cycle begins anew.
1NR
 Stimulus
Global war.
Liu 18. Dr. Qian Liu, PhD in Economics from Uppsala University, Former Visiting Researcher at the University of
California, Berkeley, Managing Director for Greater China at The Economist Group, Guest Lecturer at New York
University, Tsinghua University, the Chinese Academy of Social Sciences and Fudan University, “The Next Economic
Crisis Could Cause A Global Conflict. Here's Why”, World Economic Forum, 11-13,
https://www.weforum.org/agenda/2018/11/the-next-economic-crisis-could-cause-a-global-conflict-heres-why

The next economic crisis is closer than you think. But what you should really worry about is what comes after:
in the current social, political, and technological landscape, a prolonged economic crisis, combined
with rising income inequality, could well escalate into a major global military conflict. The 2008-09
global financial crisis almost bankrupted governments and caused systemic collapse. Policymakers
managed to pull the global economy back from the brink, using massive monetary stimulus, including
quantitative easing and near-zero (or even negative) interest rates . But monetary stimulus is like an
adrenaline shot to jump-start an arrested heart; it can revive the patient, but it does nothing to cure
the disease. Treating a sick economy requires structural reforms, which can cover everything from financial and labor
markets to tax systems, fertility patterns, and education policies. Policymakers have utterly failed to pursue such reforms, despite promising to
do so. Instead, they have remained preoccupied with politics. From Italy to Germany, forming and sustaining governments now seems to take more time than actual
governing. And Greece, for example, has relied on money from international creditors to keep its head (barely) above water, rather than genuinely reforming its
pension system or improving its business environment. The lack of structural reform has meant that the unprecedented excess liquidity that central banks injected
into their economies was not allocated to its most efficient uses. Instead, it raised global asset prices to levels even higher than those prevailing before 2008. In the
United States, housing prices are now 8% higher than they were at the peak of the property bubble in 2006, according to the property website Zillow. The price-to-
earnings (CAPE) ratio, which measures whether stock-market prices are within a reasonable range, is now higher than it was both in 2008 and at the start of the
Great Depression in 1929. As monetary tightening reveals the vulnerabilities in the real economy, the collapse of asset-price bubbles will trigger another economic
crisis – one that could be even more severe than the last, because we have built up a tolerance to our strongest macroeconomic medications. A decade of
regular adrenaline shots, in the form of ultra-low interest rates and unconventional monetary policies,
has severely depleted their power to stabilize and stimulate the economy. If history is any guide, the
consequences of this mistake could extend far beyond the economy . According to Harvard’s Benjamin Friedman,
prolonged periods of economic distress have been characterized also by public antipathy toward minority
groups or foreign countries – attitudes that can help to fuel unrest, terrorism, or even war. For example, during the
Great Depression, US President Herbert Hoover signed the 1930 Smoot-Hawley Tariff Act, intended to protect American workers and farmers

from foreign competition. In the subsequent five years, global trade shrank by two-thirds. Within a decade, World War II had begun. To be

sure, WWII, like World War I, was caused by a multitude of factors; there is no standard path to war. But there is reason to believe that high levels of

inequality can play a significant role in stoking conflict. According to research by the economist Thomas Piketty, a spike in
income inequality is often followed by a great crisis . Income inequality then declines for a while, before
rising again, until a new peak – and a new disaster . Though causality has yet to be proven, given the limited number of data points, this
correlation should not be taken lightly, especially with wealth and income inequality at historically high levels. This is all the more worrying in

view of the numerous other factors stoking social unrest and diplomatic tension, including technological
disruption, a record-breaking migration crisis, anxiety over globalization, political polarization, and
rising nationalism. All are symptoms of failed policies that could turn out to be trigger points for a future
crisis. Voters have good reason to be frustrated, but the emotionally appealing populists to whom they are increasingly giving their support are offering ill-
advised solutions that will only make matters worse. For example, despite the world’s unprecedented interconnectedness, multilateralism is increasingly being
eschewed, as countries – most notably, Donald Trump’s US – pursue unilateral, isolationist policies. Meanwhile, proxy wars are raging in Syria and Yemen.
Against this background, we must take seriously the possibility that the next economic crisis could lead
to a large-scale military confrontation. By the logic of the political scientist Samuel Huntington , considering such a scenario could help us
avoid it, because it would force us to take action. In this case, the key will be for policymakers to pursue the structural reforms
that they have long promised, while replacing finger-pointing and antagonism with a sensible and respectful global dialogue. The alternative may
well be global conflagration.

That’s the death-knell for US credibility.

Giaritelli 17 (Anna, “Sen. Marco Rubio: Government shutdown would be 'catastrophic' for the
world,” April 23, http://www.washingtonexaminer.com/sen-marco-rubio-government-shutdown-would-
be-catastrophic-for-the-world/article/2621013)

Sen. Marco Rubio, R-Fla., warned Sunday against letting the federal government shutdown this week because of the effects it could have on
national security and foreign affairs. "We cannot shut down the government right now," Rubio told CBS "Face the Nation" host John Dickerson,
citing a number foreign events and threats. "We have a potential crisis brewing with North Korea. We've seen what's going on, the

ongoing crisis in Syria. We don't know what the outcome of the French election is going to be, but that could potentially throw the European Union
and the NATO alliance into some level of consternation," Rubio said. "The last thing we can afford is to send a message
to the world that the United States government, by the way, is only partially functioning. I mean, that would just have
catastrophic impact in my view, or certainly very destabilizing, I should say, impact on global affairs." Rubio said Congress'
priority is finishing the current budget year, but appropriating funding for 2018 should start to take place now.

2) Everyone concedes.
Walsh 20. Ben Walsh, finance reporter at Barron's, (11-5-2020, "McConnell Says Senate Will Start Working on a
New Stimulus Bill Next Week," Barrons, https://www.barrons.com/articles/mcconnell-says-senate-will-start-
working-on-a-new-stimulus-bill-next-week-51604583871)//pacc

[Tittle: "McConnell Says Senate Will Start Working on a New Stimulus Bill Next Week,"]

The Senate is back in session on Monday, and Majority Leader Mitch McConnell said Wednesday that the upper
chamber will start work on another round of stimulus when it returns.

McConnell added that “it’s a possibility we will do more for state and local governments,” a key stumbling block in
pre-election talks.

Tossing out the possibility of additional state and local aid could be McConnell’s way of showing he’s
open to a deal—if House Speaker Nancy Pelosi goes along with one of his asks, such as a liability shield for
employers.

Such liability
shield language has been anathema to Democrats, but Pelosi might be willing to concede it
given that the GOP currently appears on track to hold a slightly slimmed-down Senate majority.

If fresh talks begin, they will come on the heels of disappointing economic news . Businesses added 365,000 jobs in October,
according to ADP, far below the 600,000 analysts had forecast and well below the pace seen in September and August. Friday’s jobs report will provide a fuller
picture on the country’s labor recovery.

The acceleration in Covid-19 cases in the U.S. may push lawmakers to reach an agreement during a lame-
duck session. Some 102,800 new daily infections were reported Wednesday, according to data compiled by
Johns Hopkins University, the highest daily tally yet.

3) McConnell wants to get it done.

Franck 20 -- Thomas Franck, CNBC, citing McConnell’s official statements. [McConnell says reaching an
economic stimulus deal is ‘job one’ when Senate returns, 11-4-20,
https://www.cnbc.com/2020/11/04/election-2020-mcconnell-says-stimulus-will-be-senates-top-
priority-before-end-of-2020.html]

Senate Majority Leader Mitch McConnell on Wednesday said his top priority remains passing a new economic
stimulus bill before the end of the year.
McConnell, who Tuesday evening won his reelection bid for a seventh six-year Senate term, said from a news conference in Kentucky that
another relief package would be the chamber’s chief focus when it reconvenes next week.

He also said that state

and local aid, a consistent Democratic demand in relief discussions with the White
House, could be included in a new bill.

“As I’ve said repeatedly in the last few months, we

need another rescue package,” McConnell, R-Ky., said Wednesday
morning. “Hopefully, the partisan passions that prevented us from doing another rescue package will
subside with the election. And I think we need to do it and I think we need to do it before the end of the year.”

“I think that’s job one when we get back,” McConnell said. “Hopefully we get a more cooperative situation than we’ve had.”
Although Republicans appeared set to retain their majority in the Senate as of Wednesday afternoon, McConnell struck a cautious outlook and
cited tight contests in key battleground states.

Democrats did win the Senate race in Colorado, and are leading in Arizona, but as of 1:55 p.m. ET they appear to be set to fall short of
becoming the majority. NBC News projects Democrats will keep control of the House of Representatives.

Maine Democrat Sara Gideon’s concession to incumbent Sen. Susan Collins makes flipping the chamber even more difficult, though NBC News
has yet to make an official call on that race.

Still, McConnell’s
comments could rekindle relief talks between the two parties after months of stalled
negotiations between Democratic House Speaker Nancy Pelosi and White House officials including Treasury Secretary Steven Mnuchin.

Their sibilla ev is about a 2012 amendment that did NOT pass---it cites GOP
repluctance to support the amendment---this intra-party fighting is our link. See
highlighting. MBA reads yellow.
Nick Sibilla 12, "Bipartisan effort to ban indefinite detention, amend the NDAA", May 18,
www.constitutioncampaign.org/blog/?p=7479#.UjHhXz8uhuk)

Democrats and Tea Party Republicans are advocating a new proposal to ban indefinite detention on
American soil. After President Obama signed the National Defense Authorization Act (NDAA) last year, anyone accused of being a terrorist, committing any
“belligerent act” or even providing “material support,” can now be detained indefinitely by the military without a trial. This includes American citizens. ¶ Fortunately,
a bipartisan coalition is working to stop the NDAA. Congressmen Adam Smith (D-WA), a Ranking Member of the House Armed Services
Committee, and Justin Amash (R-MI), who Reason magazine called “the next Ron Paul,” have sponsored an amendment to the latest defense

authorization bill, currently on the House floor. ¶ If adopted, the Smith-Amash Amendment would make three significant

changes to the NDAA. First, it would amend Section 1021 (which authorizes indefinite detention) to ensure
that those detained will not be subject to military commissions, but civilian courts established under
Article III of the Constitution. As Congressman Smith put it, this would “restore due process rights.”¶ Second, the Smith-Amash
Amendment would ban “transfer to military custody:”¶ No person detained, captured, or arrested in the United States, or a territory or possession of the United
States, may be transferred to the custody of the Armed Forces for detention…¶ Finally, their amendment would repeal Section 1022 of the NDAA, which mandates
military custody for those accused of foreign terrorism. ¶ Both Smith and Amash have criticized the NDAA. Amash blasted the NDAA as “one of the most anti-liberty
pieces of legislation of our lifetime.” In
a letter urging his Republican colleagues to support the amendment, Amash writes:¶
A free country is defined by the rule of law, not the government’s whim . Americans demand that we protect their right to a
charge and trial.¶ Meanwhile, in an interview with The Hill, Smith was concerned about the potential abuses of power: ¶ It is very, very rare to give that amount of
power to the president [and] take away any person’s fundamental freedom and lock them up without the normal due process of law…Leaving this on the books is a
dangerous threat to civil liberties.¶ The Smith-Amash Amendment is expected to be voted on later this week. So far, it
has 60 co-sponsors in the
House. Meanwhile, Senators Mark Udall (D-CO) and Patrick Leahy (D-VT) have introduced a similar bill in the Senate.

McConnell fights the plan.

Balko 18 – opinion writer at Washington Post focusing on civil liberties, the drug war and the criminal-
justice system. (Radley, 12/10/18, “Let’s stop pretending that Trump cares about criminal-justice
reform,” https://www.washingtonpost.com/opinions/2018/12/11/lets-stop-pretending-that-trump-
cares-about-criminal-justice-reform/)//MGreen

And yet. We’re now approaching the end of this Congress, and it’s increasingly looking like the bill won’t pass the Senate .
It isn’t that it doesn’t have the votes — it apparently does. It’s that Senate Majority Leader Mitch McConnell (R-Ky.) doesn’t want to
bring it up for a vote. If this were truly a priority for Trump, he could pick up the phone and demand a
vote. Instead, he gently prodded McConnell in a tweet, even as McConnell reportedly sent law-and-order
Sen. Tom Cotton (R-Ark.) out to whip up votes against it. The president is also considering tying the bill to funding for his border
wall, a measure that will likely break up the coalition supporting it. Trump may support this bill, but he’s certainly not
going to expend any political capital to make it law, nor is he above using it to get that sprawling, “beautiful,” empty gesture
of anti-immigrant fervor that he promised his base. As with most of Trump’s principles , his allegiance to criminal-justice reform is
shallow, negotiable and possibly subject to veto by hosts on Fox News. Yes, Trump seems to enjoy the press and celebrity
attention he gets for his pardons. But there’s an old saying that “personnel is policy” — if you want to know what policies are important to a
president, look at the people he’s appointing to important positions.

AUMF amendment causes controversy

Stolberg ’17 (Sheryl; 9/13/17; Congressional Correspondent for the Times, member of a staff awarded two Pulitzer Prizes; New York
Times, “Senate Rejects Bipartisan Effort to End 9/11 Military Force Declaration,” https://www.nytimes.com/2017/09/13/us/politics/senate-
rejects-rand-paul-effort-to-end-military-force-declaration.html; RP)

Nearly 16 years to the day after Congress first authorized a military response to the attacks of Sept. 11, 2001, the
Senate on Wednesday
rejected an effort to repeal the virtual blank check that Congress granted to the president while smoke still
rose from the rubble of the World Trade Center. The debate pitted the Republican Party’s ascendant isolationist
wing, represented by Senator Rand Paul of Kentucky, against its old-line interventionists, led by Senator John
McCain, Republican of Arizona, who is pressing his vision of a muscular military even as he battles brain cancer. Mr. Paul pressed for the
repeal vote, in a strange bedfellows alliance with Senator Tim Kaine, the Virginia Democrat who was his party’s vice-presidential nominee last
year. But the
effort failed when senators voted 61 to 36 to set the measure aside, rather than include it in
the annual defense policy bill that senators are considering this week. “What we have today is basically unlimited war — war
anywhere, anytime, any place on the globe,” Mr. Paul told his colleagues in a speech Tuesday afternoon on the Senate floor. “I don’t think
anyone with an ounce of intellectual honesty believes these authorizations allow current wars we fight in seven countries.” Mr. Paul had
proposed repealing the declaration in six months, to give lawmakers time to consider a new one. The issue has been around since
2015, when President Barack Obama asked Congress to replace the authorization of military force passed to
battle Al Qaeda with a new one crafted specifically to take on the Islamic State. But so far Congress has balked ,
declining to take on the difficult issue even as lawmakers such as Mr. Kaine insist that the legislative branch
should reclaim its constitutional duty to declare war. In the House, in another unlikely partnership, Representative Barbara
Lee, the California Democrat who was the only member of the House to vote against the original resolution in 2001, paired up with
Representative Scott Taylor, a freshman Virginia Republican and former Navy SEALs member, over the summer to persuade the
Appropriations Committee to insert language repealing the original use of force declaration into a spending bill. “I just
felt compelled to stand up and say, now it’s time to look at the A.U.M.F.,” Mr. Taylor said, using the abbreviation for the authorization for the
use of military force. He said once he spoke up, other Republicans joined in to support him: “It’s an issue that I don’t think is going to go away.”
But Republican leaders stripped the provision out of the spending measure; Speaker Paul D. Ryan said at the time
that the move was a “mistake” and that such language was not appropriate for inclusion in a spending measure. “It was
really shameful,” Ms. Lee said in an interview. “The Constitution requires us to do our job and debate the costs of war.” Wednesday’s
vote put the question of the president’s authority to commit troops overseas up for a vote for the first
time in a generation , and some lawmakers, mindful of their obligations under the Constitution, seemed genuinely torn .
Senator Jack Reed of Rhode Island, the senior Democrat on the Armed Services Committee, said that in forcing senators to take a stand, Mr.
Paul had “been relentless in doing something that has to be done.” But, he added, “you can’t replace something with nothing, and we have
nothing.” Senator Mitch McConnell of Kentucky, the Republican leader, arguedstrongly against repealing the military force
authorization, saying that ending the authority the president relies on to fight the Islamic State would create
only confusion within the armed forces. “We have an all-volunteer force that protects all of us and fights for us,’’ Mr. McConnell
told his Senate colleagues, adding, “We cannot break faith with these men and women by removing the authority they rely
on to pursue the enemy.”

Historically true – no one wants to risk limiting the Pentagon.

Associated Press ’17 (AP; 7/2/17; Non-profit news agency, citing Congressional addresses; VOA, “Bipartisan Support for Measure
to Require New War Powers Authority,” https://www.voanews.com/a/bipartisan-support-new-war-powers-authority/3924881.html; RP)

Unlikely to succeed Yet ifhistory is a guide, the amendment to cut off the 2001 authorization for the use of
military force against the terrorist groups who carried out the 9/11 attacks will be scratched from a Pentagon
spending bill before the legislation ever reaches the House floor. Robert Chesney, an expert on national
security law and a professor at the University of Texas law school, said there’s little incentive for congressional
leaders and the Trump White House to open the 2001 authorization to changes. Properly or not, he said, the law has
been read expansively to cover all current military operations, whereas a rewrite may put limits and barriers
on what the Pentagon can do. “There’s nothing forcing their hand,” Chesney said. “The concern is that no one is quite
sure what might come out of the revision process.” Rep. Kay Granger of Texas, the chairwoman of the panel’s defense
subcommittee, opposed the measure and warned her colleagues they were making a serious mistake. She
called the amendment a deal breaker that would tie the hands of the U.S. to act on its own or with other
countries to attack and defeat terrorist groups.

Disagreements over authority trigger constitutional showdowns

Posner and Vermeule, 10 - *professor of law at the University of Chicago AND **professor of law at
Harvard (Eric and Adrian, The Executive Unbound, p. 75-77)

Showdowns occur when the location of constitutional authority for making an important policy decision
is ambiguous, and multiple political agents (branches, parties, sections, governments) have a strong interest in
establishing that the authority lies with them . Although agents often have an interest in negotiating a settlement, asymmetric
information about the interests and bargaining power of opposing parties will sometimes prevent such a settlement from being achieved. That
is when a showdown occurs. Ultimately, however, someone must yield; this yielding to or acquiescence in the claimed authority of another
agent helps clarify constitutional lines of authority, so that next time the issue arises, a constitutional impasse can be avoided. From a
normative standpoint, constitutional showdowns thus have an important benefit, but they are certainly not costless. As long as the showdown
lasts, the government may be paralyzed, unable to make important policy decisions, at least with respect to the issue under dispute. We begin
by examining a simplified version of our problem, one involving just two agents—Congress and the executive. We assume for now that each
agent is a unitary actor with a specific set of interests and capacities. We also assume that each agent has a slightly different utility function,
reflecting their distinct constituencies. If we take the median voter as a baseline, we might assume that Congress is a bit to the left (or right) of
the median voter, while the president is a bit to the right (or left). We will assume that the two agents are at an equal distance from the
median, and that the preferences of the population are symmetrically distributed, so that the median voter will be indifferent between whether
the president or Congress makes a particular decision, assuming that they have equal information.39 But we also will assume that the president
has better information about some types of problems, and Congress has better information about other types of problems, so that, from the
median voter’s standpoint, it is best for the president to make decisions about the first type of problem and for Congress to make decisions
about the second type ofproblem.40 Suppose, for example, that the nation is at war and the government must decide whether to terminate it
soon or allow it to continue. Congress and the president may agree about what to do, of course. But if they disagree, their disagreement may
arise from one or both of two sources. First, Congress and the president have different information. For example, the executive may have
better information about the foreign policy ramifications of a premature withdrawal, while Congress has better information about home-front
morale. These different sources of information lead the executive to believe that the war should continue, while Congress believes the war
should be ended soon. Second, Congress and the president have different preferences because of electoral pressures of their different
constituents. Suppose, for example, that the president depends heavily on the continued support of arms suppliers, while crucial members of
Congress come from districts dominated by war protestors. Thus, although the median voter might want the war to continue for a moderate
time, the president prefers an indefinite extension, while Congress prefers an immediate termination. So far, we
have explained why
the president and Congress might disagree about when to terminate the war, but mere policy
disagreement does not result in a showdown. Showdowns arise only when there is a disagreement
about authority. If Congress believes that the president has the sole authority to terminate the war, then his view will prevail. Congress
may try to pressure him or influence him by offering support for other programs desired by the president, or by trying to rile up the public, but
these activities are part of normal politics, and do not provoke a constitutional showdown. Similarly, if the president believes that Congress has
the sole authority to terminate the war, then Congress’s view will prevail. This outcome is shown in cell 3 in table 2.1. Similarly, no
showdown occurs when the two branches agree both about authority and policy—for example, that the president
decides, and Congress agrees with his decision (cell 1). The first column represents the domain of normal politics. Showdowns can arise
only when Congress and the president disagree about who decides. Here, there are two further possibilities. First, Congress and
the president disagree about who decides but agree about the correct policy outcome (cell 2). In these situations,
which arise with some frequency, the two branches are often tempted to paper over their differences because an immediate policy choice is
not at stake. But sometimes a showdown will occur. We will discuss this special case later. Second, Congress and the president disagree about
the policy outcome and about authority (cell 4). In this case, showdowns are likely, because a policy decision must be made, and if the parties
cannot agree about what it should be, then they cannot avoid resolving the question of authority. We focus on this case for now.

AND it destroys Trump-Congress relations

Posner and Vermeule, 8 - *professor of law at the University of Chicago AND **professor of law at
Harvard (Eric and Adrian, “Constitutional Showdowns” 156 U. Pa. L. Rev. 991, lexis)

In many historical cases, Congress and the President agree about the policy outcome but disagree about
lines of authority. For example, suppose that the executive branch has made a controversial decision, and a suspicious Congress wants
the relevant executive officials to testify about their role in that decision. The President believes that Congress has no right to compel the
officials to testify, whereas Congress believes that it has such a right. However, the President, in fact, does not mind if the officials testify
because he believes that their testimony will reveal that the decision was made in good faith and for good reasons. [*1016] The
President's problem is that, if he allows the officials to testify, Congress and the public might interpret his
acquiescence as recognition that Congress has the power to force executive officials to testify. If he refuses to
allow the officials to testify, then he preserves his claim of executive privilege but loses the opportunity to show that the decision was made in
good faith. In addition, he risks provoking a constitutional impasse in which Congress could eventually prevail - if, as we have discussed, public
constitutional sentiment turns out to reject executive privilege in these circumstances. Congress faces similar dilemmas, for example, when it
approves of officials nominated by the President for an agency or commission but wants to assert the power in general to impose restrictions
on appointments. Political agents have long relied on a middle way to avoid the two extremes of acquiescence, on the one hand, and impasse,
on the other. They acquiesce in the decision made by the other agent while claiming that their acquiescence does not establish a precedent. Or,
equivalently, they argue that their acquiescence was a matter of comity rather than submission to authority. Are such claims credible? Can one
avoid the precedential effect of an action by declaring that it does not establish a precedent - in effect, engaging in "ambiguous acquiescence"?
The answer to this question is affirmative as long as the alternative explanation for the action is in fact credible. If, for example, observers agree
that the President benefits from the testimony of executive officials, then his acquiescence to a congressional subpoena has two equally
plausible explanations: that he independently benefits from the testimony, or that he believes that public constitutional sentiment rejects
executive privilege. The response is thus ambiguous, and Congress may be no wiser about what will happen in the future when the President
does not wish to permit officials to testify because their testimony would harm him or executive branch processes. If so, the ambiguous nature
of the action does not establish a focal point that avoids an impasse in the future. On the other hand, if the President's claim that he benefits
from the testimony is obviously false, then his authority will be accordingly diminished. This is why ambiguous acquiescence is not a credible
strategy when the President and Congress disagree about the policy outcome. If the President thinks the war should continue, Congress thinks
the war should end, and the President acquiesces to a statute that terminates the war, then he can hardly argue that he is acting out of comity.
He could only be acting because he lacks power. But an agent can lack authority in more complicated settings where no serious [*1017] policy
conflict exists. If the President makes officials available for testimony every time Congress asks for such testimony, and if the testimony usually
or always damages the President, then his claim to be acting out of comity rather than lack of authority eventually loses its credibility. Repeated
ambiguous acquiescence to repeated claims over time will eventually be taken as unambiguous acquiescence and hence a loss of authority. For
this reason, a President who cares about maintaining his constitutional powers will need to refus e to allow
people to testify even when testimony would be in his short-term interest.

SOP fights disrupt Congress

Adam B. Cox & Cristina M. Rodríguez 16, Adam B. Cox is the Robert A. Kindler Professor of Law, NYU
School of Law. Cristina M. Rodríguez is the Leighton Homer Surbeck Professor of Law, Yale Law School.
Feb 17, 2016. “The President and Immigration Law Redux”.
https://www.yalelawjournal.org/pdf/c.104.Cox-Rodriguez.225_rnfqiszo.pdf, rascoe

Presidential policymaking has always provoked political controversy, at least as much because of deep ideological
disagreements over immigration policy as because of the perception it creates of an aggressive or
boundless Executive. The fact that today’s particular controversy over the Obama relief initiatives has vivid partisan
overtones is not to say that limits on policymaking through enforcement do not exist, even when they do not appear visibly or clearly in the statutes that set the parameters for
executive action. But those limits will be excruciatingly difficult to define without disabling legitimate and desirable executive action, given the inevitability
of enforcement discretion and the values-based judgments that attend it. The bright-line rules critics have offered may have the appeal of ease of application, but they constrain executive

The separation of powers

power in ways that are neither constitutionally required nor necessarily consistent with the goal of keeping executive power in check.

ultimately amounts to a messy political contest, and the search for clear, lawyerly lines to draw around the powers of the
branches, we have come to believe, is misguided. Even if the current lawsuits succeed in scuttling the Obama initiatives, the imperatives of enforcement will not disappear, and

any President will respond to those imperatives while pursuing his own objectives. We can only hope that he has the necessary freedom to structure the enforcement power in
ways that serve the goals of accountability and constraint, and that he faces public and congressional pressure to do precisely that.